ORDER : (Suraj Govindaraj, J.) A. Prayers 1. The Petitioner in W.P.No.202094/2024 is before this Court seeking for the following reliefs: i. Issue a writ of certiorari or any other writ of like nature and quash the tender bearing No. BWCD/klb/food/tender/2024-25 dated 05.08.2024 invited by the respondent no.4 vide Annexure F to the writ petition. ii. Issue a writ of Mandamus or any other writ of like nature and direct the respondents to call for the fresh tender either taluka wise or not to insist upon financial conditions and, iii. Grant any other remedy that this Hon’ble Court deems fit in the facts and circumstances of the case. 2. The Petitioner in W.P.No.201984/2024 is before this Court seeking for the following reliefs: a. Issue a writ of Certiorari or any other writ of like nature and quash the tender bearing No. BWCD/E-Tender/Food/CR-2/2024-25 dated 24.07.2024 invited by the respondent No.6 vide Annexure F to the writ petition. b. Issue a writ of Certiorari or any other writ of like nature and quash the tender bearing No. BWCDY/Account.Food Tender/CR/2024-25 dated 25.07.2024 invited by the respondent No.5 vide Anenxure-F1 to the writ petition. c. Issue writ of Mandamus or any other writ of like nature and direct the respondents to call for a fresh tender either taluka wise or not to insist upon financial conditions and; d. Grant any other remedy that this Hon’ble Court deems fit in the facts and circumstances of the case. 3. The Petitioner in W.P.No.202199/2024 is before this Court seeking for the following reliefs: a. Quash the impugned E-Procurement tender bearing No. BCWD/E-Tender/Food/Cr-2/2024-25 dated 24.07.2024 so far as clause 2 Sl.No.2 and 3 with regard to production of Average annual turnover & 80% supply of food items in preceding 3 financial years is concerned issued by respondent no.2,the copy of which obtained from the website of respondent no.2 is at Annexure-A b. Direct respondent No.2 & 3 representation dated 05.08.2024 submitted by petitioner the copy of which is at Annexure-D c. Grant any other order or writ which this Hon’ble Court may deem necessary in the circumstances of the case. 4. 4. The Petitioner in W.P.No.202230/2024 is before this Court seeking for the following reliefs: a. Quash the impugned E-Procurement tender notification dated 05.08.2024 so far as clause 2 Sl.No.2 & 3 with regard to production of Average annual turnover & 80% supply of food items in preceding 3 financial years is concerned, issued by respondent no.2, the copy of which obtained from the website of respondent no.2 is at Annexure-A b. Direct respondent No.2 & 3 representation dated 12.08.2024 submitted by petitioner the copy of which is at Annexure-D c. Grant any other order or writ which this Hon’ble Court may deem necessary in the circumstances of the case. 5. The Petitioner in W.P.No.202248/2024 is before this Court seeking for the following reliefs: 1. Issue a writ of Certiorari or any other writ of like nature and quash the tender bearing No. BCWD/klb/food/tender/2024-25 dated 05.08.2024 invited by the respondent no.6 vide Annexure-E to the writ petition. 2. Issue a writ of Certiorari or any other writ of like nature and quash the tender bearing No. BCWD/Account/Food Tender/Cr/2024-25 dated 25.07.2024 invited by the respondent No.7 vide Annexure-E to the writ petition. 3. Issue a writ of Certiorari or any other writ of like nature and quash the tender dated 01.08.2024 invited by the respondent No.8 vide Annexure-E2 to the writ petition. 4. Issue writ of Mandamus or any other writ of like nature and direct the respondents to call for a fresh tender either taluka wise or not to insist upon financial conditions and; 5. Grant any other remedy that this Hon’ble Court deems fit in the facts and circumstances of the case. 6. The Petitioner in W.P.No.202263/2024 is before this Court seeking for the following reliefs: a) Issue a writ of Certiorari or any other writ of like nature and quash the tender bearing No. BCWDY/Account.Food Tender/CR/2024-25 dated 25.07.2024 invited by the respondent No.4 vide Annexure-E to the writ petition. b) Issue writ of mandamus or any other writ of like nature and direct the respondents to call for a fresh tender either taluka wise or not to insist upon financial conditions and; c) Grant any other remedy that this Hon’ble Court deems fit in the facts and circumstances of the case. 7. b) Issue writ of mandamus or any other writ of like nature and direct the respondents to call for a fresh tender either taluka wise or not to insist upon financial conditions and; c) Grant any other remedy that this Hon’ble Court deems fit in the facts and circumstances of the case. 7. The Petitioner in W.P.No.202345/2024 is before this Court seeking for the following reliefs: a. Issue a writ of Certiorari or any other writ of like nature and quash the tender bearing No. BCWD/ADM/TENDER/CR/2024-25 dated 05.08.2024 invited by the Respondent No.4 vide Annexure-E to the writ petition. b. Issue a writ of Mandamus or any other writ of like nature and direct the respondents to call for a fresh tender either taluka wise or not to insist upon financial conditions and; c. Grant any other remedy that this Hon’ble Court deems fit in the facta and circumstances of the case. 8. The Petitioner in W.P.No.202368/2024 is before this Court seeking for the following reliefs: a. Quash the impugned E-Procurement tender notification dated 05.08.2024 bearing No. BCWD/ADM/TENDER/CR/2024-25 so far as clause 2 Sl.No.2 & 3 with regard to production of Average annual turnover & 80% supply of food items in preceding 3 financial years is concerned, issued by Respondent No. 2 & 3 the copy of which is obtained from the website of respondent No.2 is at Annexure-A; b. Grant any other order or writ which this Hon’ble Court may deem necessary in the circumstances of the case. 9. The Petitioner in W.P.No.202390/2024 is before this Court seeking for the following reliefs: a. Issue any writ or order, writ in the nature of Certiorari, quashing the impugned Tender Notification dated 1.8.2024 in No. JhinVaKkkaEra/Accounts/CR-2024-25 vide Annexure-A b. Issue any writ or order, writ in the nature of Mandamus directing R3 to invite fresh Taluk Level Tender for supply of food grains and other article to the Pre-Matric, Post Metric Hostels and Ashrama Schools under BCW in Raichur District. c. Issue any writ or order, writ in the nature of Mandamus, directing R2 and R3 to consider the representations dated 27.8.2024 vide Annexure-D and E and d. Pass any such other order orders as this Hon’ble Court deems fit in the facts and circumstances of the case, in the interest of justice and equity. B. Challenge 10. The challenges in the above petitions are all the same. B. Challenge 10. The challenges in the above petitions are all the same. Each of the petitioners claiming that they had earlier been supplying food articles to various schools and colleges on a tender issued by the Department of Backward Classes. It is claimed that earlier, the tenders were issued for a one-year period taluka wise, which enabled local businesses/contractors to participate in the tender process and also to supply the food articles at a lesser price, cost of transport being lesser. 11. It is claimed that now by the impugned tenders which have been issued across the State, have been so issued districtwise requiring the successful tenderer to supply food articles to colleges and schools on a district basis for the entire district as a unit as also the quality of the food prescribed are at the higher end, making it unreasonable and difficult for local contractors to participate in the tender processes. 12. Essentially, what has been challenged are clauses 2, 3 and 9 of the eligibility citeria of the tender notifications, which are reproduced hereunder for easy reference: ELIGIBILITY CRITERIA Sl CRITERIA MANDATORY SUPPORTING DOCUMENTS 1 The bidder should be a Company/Firm/Individual Proprietorship registered under law, Co-operative Societies registered under Society's act The bidder shall have in the business of Bulk Supply of Perishable/Non-Perishable food items to any of the State/Central Government Departments/Institutions/ Organisations for at least for a period of 5 Years out of preceding 7 years i.e., from 2016-17 to 2023- 24 a) Company/establishment/ organisation Registration certificate b) Copy of Work orders issued by any of the State/Central Government Departments/Institutions/Organisations to establish years of experience in supply of food materials for at least for a period of 5 Years out of preceding 7 years i.e., from 2016-17 to 2023-24. c) Details of the Bidder shall be submitted as per Annexure A 2 The average annual financial turnover of the bidder should be twice the estimated cost of the quantity mentioned in the Tender document during the preceding 3 financial years i.e., 2020-2021, 2021-22 and 2022- 23. All the documents below for 3 financial years i.e.. a) Audited Statement of Accounts viz. All the documents below for 3 financial years i.e.. a) Audited Statement of Accounts viz. Balance Sheet, Trading/Profit and Loss Account b) IT Returns c) Certificate issued by the CA as per Annexure B 3 Should have supplied food items to any of the State/Central Government Department/ Institutions/Organisations in India at least 80% of the requirement of the quantity mentioned in the tender document in any one of the last 3 financial years 2021-22, 2022-23 and 2023-24. All the documents below: a) Details as per format in Annexure C. b) Copies of the Purchase/work orders c) Satisfactory completion certificate issued clients (Must tally with the work orders furnished) 4 The bidder should have valid License. Certificate (Form-C) issued by Food Safety and Standards Authority of India - FSSAI for the food products offered in the tender wherever applicable. Copy of the valid License Certificate (Form-C) issued by Food Safety and Standards Authority of India as per individual/category of the food items shall be submitted. 5 Local Presence: In order to ensure supplies across the district, as on the last day of bid submission the bidder should have local supply centre/warehouse/Godown within the district for which they are submitting the tender Or agree to setup such centre in the district within 30 days of award of Contract/issue of Purchase order Copy of the Licence certificate issued by the Competent Local authority as proof of having the supply centre/warehouse/Godown (with address) in the respective District and the details as per Annexure-D In case the bidder do not have supply centre/warehouse/Godown in the district as on the date of the Tender submission, the bidder should submit an undertaking to setup such centre in the district within 30 days of award of Contract/ issue of Purchase order as per Annexure E 6 The bidder should not have been debarred/blacklisted by any State Government, Central Government, Central & State Govt. Undertakings/enterprises/ Organizations and by any other Quasi Government bodies/Organizations, Govt Emarketing portal or any major Enterprise/ Organization in India for non-satisfactory performance, corrupt & Fraudulent or any other unethical business practices, not meeting critical conditions/security clearance etc during the past. Should provide an undertaking in the form of an Affidavit as per Annexure G 7 The Products offered by the bidder shall meet the specification as per Appendix II of the Bid Document. Should provide an undertaking in the form of an Affidavit as per Annexure G 7 The Products offered by the bidder shall meet the specification as per Appendix II of the Bid Document. The bidder should submit the statement of compliance to specification for each of the item. 8 Earnest Money Deposit as per the Tender notification Shall be submitted as mentioned under Tem Notification. The EMD for NSIC Registered units un single point registration system of Government of India is exempted. The bidder shall select the relevant option in the Public Procurement Portal against EMD payment clause and upload the NSIC registra certificate Bids claiming EMD exemption against certificate like Udyam/Udyog Adhaar or any other MSE Registrations other than NSIC SPRS will be rejected at initial stage itself 9 Consortiums are not allowed to participate in the Tender C. Submissions of the Petitioners: 13. There being several petitioners, lead arguments were advanced by Sri. V. Srinivas, learned counsel for the petitioners, who submits that; 13.1.Once earlier, a similar tender had been issued with similar conditions which had been challenged before this Court in W.P.No.12515/2024, W.P.No.12520/2024, W.P.No.12525/2024 and W.P.No.102980/2024, where an interim order was granted allowing the petitioners therein to participate in the tender process without the state insisting on the aforesaid conditions. 13.2.He contends that taking note of the deficiencies pointed out by the petitioners, the Commissioner, Department of Backward Classes Welfare, by an order dated 05.06.2024 directed all Deputy Directors, District Officers of the Backward Classes Welfare Department to cancel the tender and call for a fresh tender. Thus, he submits that the Department had accepted the fallacy and the lacunae pointed out by the petitioners in the aforesaid writ petitions. Hence, the question of issuing a fresh tender on the same conditions would not arise. 13.3.It is taking note of the cancellation of the tender that the above writ petitions were dismissed as withdrawn. 13.4.Now once again, Respondent No.4, District Officer and the Tender Inviting Officer has called for tenders for supply of food articles to Pre/Post-Metric Hostels as also Ashrama Schools coming within their respective jurisdictions as per the tender notification mentioned in the prayer columns extracted hereinabove, for a period of two years or until next tender is issued on the same conditions as had been challenged earlier. 13.5.He contends that the said conditions are unsustainable, being radically different from the past practices which had been followed by the Department, inasmuch as the earlier tenders were for a period of one year and the qualifying conditions were much lesser, whereas in the present tender, they are completely onerous and manifestly arbitrary. The conditions have been introduced so as to exclude the petitioners thereby violating Article 14 of the Constitution of India. 13.6.Further, the said conditions have been imposed and included so as to favor bigger businesses, thereby impinging on the rights of the petitioners who are Micro, Small & Medium Enterprises (MSMEs). The avowed policy of the State being to encourage MSMEs. These clauses would go against the said policy. 13.7.In the event of the tenders having been issued at the local taluka level, there would be more persons who would have participated in the tender process, thereby providing better rates. By calling for tenders district-wise, the State itself is going to be adversely affected, inasmuch as the prices that would be quoted and would have to be paid would be on a higher side. 13.8.The tender conditions have been so included to favour economically stronger businesses, thereby violating the right and freedom of carrying out business and trade of the petitioners under Article 19 of the Constitution of India. There is no nexus insofar as the period fixed for two years in the tender when earlier the requirement of the tenders was floated for one year. This increase in the period of time is completely arbitrary, there are no reasons which have been provided for the same. 13.9.The objective of the tender which is a State largesse, is to enable larger and wider participation of businesses to provide them a source of livelihood. By increasing the period, as also increasing the area, small businesses have been discriminated against by excluding small businesses and giving an unreasonable advantage to big businesses, thereby violating Article 14 of the Constitution of India. 13.10.The terms of the tender have been tailormade to suit the convenience of persons favoured by the establishment. Hence, it is only those persons who would participate and be successful in the tender processes. 13.11.The conditions which have been imposed are malicious and misuse of statutory powers made with the intention of favoring certain persons or establishments/lobbies. 13.10.The terms of the tender have been tailormade to suit the convenience of persons favoured by the establishment. Hence, it is only those persons who would participate and be successful in the tender processes. 13.11.The conditions which have been imposed are malicious and misuse of statutory powers made with the intention of favoring certain persons or establishments/lobbies. 13.12.The eligibility restriction has been made stringent so as to exclude the petitioners who have been supplying food grains for last several years and thereby impinging on their right to carry out business. The past practices for over 25 years has been to call for tenders talukawise, which has suddenly been changed to district-wise, which is not sustainable either in law or facts. There are no reasons provided by the State as to why there is a change of this policy from the taluka level to the district level. 13.13.He submits that there is a violation of Section 6C of the Karnataka Transparency in Public Procurement Act, 1999 (for short, hereinafter referred to as ‘the Act’), which requires preference to Micro, Small and Medium Enterprises. By virtue of the present tender, such MSMEs have been discriminated against giving a complete go-by to Section 6C of the Act. 13.14.Section 6C of the above referred to Act has been reproduced hereunder for easy reference: 6C. Preferences to Micro & Small Enterprises : To encourage Micro and Small Enterprises, preferences may be given to them in such manner subject to such conditions as may be prescribed by the Government. Explanation:-"For the purpose of this Section, Micro and Small Enterprises shall have the same meaning as defined in the Micro, Small and Medium Enterprises Development Act, 2006 (Central Act 27 of 2006) 13.15. He relies upon the decision of the Hon’ble Apex Court in the case of Meerut Development Authority vs. Association of Management Studies and Another, (2009) 6 SCC 171 , more particularly para no.17 thereof, which is reproduced hereunder for easy reference: 17. A tender is an offer. It is something which invites and is communicated to notify acceptance. Broadly stated it must be unconditional; must be in the proper form, the person by whom tender is made must be able to and willing to perform his obligations. The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Broadly stated it must be unconditional; must be in the proper form, the person by whom tender is made must be able to and willing to perform his obligations. The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. However, a limited judicial review may be available in cases where it is established that the terms of the invitation to tender were so tailor made to suit the convenience of any particular person with a view to eliminate all others from participating in the biding process. The bidders participating in the tender process have no other right except the right to equality and fair treatment in the matter of evaluation of competitive bids offered by interested persons in response to notice inviting tenders in a transparent manner and free from hidden agenda. One cannot challenge the terms and conditions of the tender except on the above stated ground, the reason being the terms of the invitation to tender are in the realm of the contract. No bidder is entitled as a matter of right to insist the Authority inviting tenders to enter into further negotiations unless the terms and conditions of notice so provided for such negotiations. 13.16.He submits by relying on the Meerut Development Authority's case that there is a scope of judicial review which is available to this Court to interfere where the actions of the State and/or the Tendering Authority are discriminatory in nature. All the conditions laid down in Meerut Development Authority's case are satisfied in the present case and therefore, he submits that the actions on part of the State are required to be deprecated and the tender notification quashed. 13.17.He relies upon the decision of a co-ordinate bench of this Court in the case of Chinnappa Reddy vs State of Karnataka, WP No.28866/2023, more particularly para No.13 thereof, which is reproduced hereunder for easy reference: 13. If Rule 27 and the Government Order are read in tandem, what would unmistakably emerge is experience and past performance in the execution of similar contract cannot be given up in any tender to be floated by the State. If on all the aforesaid the subject Expression of Interest is noticed, the eligibility criteria quoted supra clearly gives up the work experience and even the turnover for each year. If on all the aforesaid the subject Expression of Interest is noticed, the eligibility criteria quoted supra clearly gives up the work experience and even the turnover for each year. Therefore, the subject Expression of Interest is undoubtedly contrary to the statute and the Government Order dated 14.10.2008 depicting a standard tender documents for inviting tender. For all these years, it is again an admitted fact that Expression of Interest or tender was invited strictly in consonance with Rule 27 of the Rules and the standard tender documents. It is for the first time it is being given a go-bye. 13.18.By relying on the decision in Chinnappa Reddy’s case, he submits that when the terms of the tender are contrary to the statute and the Government Order dated 14.10.2008, thereby being contrary to the standard tender documents, the same is required to be set aside. In this regard, he relies upon the Government Order dated 14.10.2008 which is reproduced hereunder for easy reference: "PREAMBLE: In Government Order dated:6-8-2005, Standard Tender Documents given in Annexure 1 to 6 appended there with were prescribed to be used in certain identified divisions of PWD and WRD and the corporations under WRD for procurement of works from 1st September 2005 for a period of six months initially on an experimental basis, so that any problems encountered in use of these Standard Tender Documents can be suitably addressed before making the Standard Tender Documents mandatory for procurement of works. "Government order No.FD 4 PCL 2008, Bangalore, dated: 14.10.2008 Under the circumstances explained in the preamble, the following clauses of the Standard Tender Documents as prescribed in Government Order dated: 6-8-2005 are modified to the extent noted below: Sl. No. Reference to Standard Tender Documents Existing Clauses Modified Clauses 1 Clause 3.2.b. Page 5 KW-1,2/3/4 Work experience: Satisfactorily completed (at least 90% of the contract value), as prime contractor, at least one similar work such as .....of value not less than Rs. (usually not Less than 80% estimated Value of Contract) a)Mandating satisfactory completion as a prime contractor for at least one similar work to an extent of 50% of the cost of the work, for all works costing up to and Rs.100 lakh. b) Mandating satisfactory completion as a prime contractor for at least one similar work to an extent of 80% of the cost of the work, for all works costing more than Rs. b) Mandating satisfactory completion as a prime contractor for at least one similar work to an extent of 80% of the cost of the work, for all works costing more than Rs. 100 lakh. The PWG Form 65 will be discontinued. The relevant Paragraphs of the KPWD Code will be amended. - - - - 3 Clause 3.2(a) Page Page 5 K/W- 4 Qualification: To qualify for award of this Contract, each Tenderer in its name should have in the last five years i.e.,2000-2001 to 2004-2005 (a) achieved in at least two financial years a Minimum financial turn over (in all classes of civil engineering construction works only) Of Rs. (usually not Rs......(usually less than two times not less than the estimated annual payments under this contract) Qualification: To qualify for award of this contract each tenderer in his name should have in the last five years' period (a) achieved in atleast two financial years an average annual financial turnover of Rs….. (usually not less than the estimated cost under this contract for works costing upto Rs.100 lakh). However the existing clause remains the same for works costing more than Rs.100 lakh….” 13.19.His submission is that the above conditions which are stated to be standard conditions are not found mentioned in the present tender. The present tender contains different conditions than the standard tender documents. Therefore, the present tender is in violation of the standard conditions requiring it to be set aside. 13.20.In terms of Clause-3 of the above standard conditions, a tenderer has to achieve for atleast two financial years out of five years, an average turnover equivalent to the tender amount whereas in the present tender, Clause-2 requires an average annual financial turnover of the bidder to be twice the estimated cost of the quantity mentioned in the tender document during the preceding three financial years of 2020-21, 2021-22, 2022-23. Thus, Clause-2 of the eligibility criteria of the present tender is contrary to Clause-3 of the standard terms. Thus, Clause-2 of the eligibility criteria of the present tender is contrary to Clause-3 of the standard terms. 13.21.By referring to Clause-4 of the standard terms, he submits that for a tenderer to qualify, the tenderer would have to have executed in any one year minimum quantities of work of 80% of the annual requirement for works costing up to Rs.100 lakhs and for works costing more than Rs.100 lakhs, the tenderer should have executed in any one financial year the minimum quantities of work, usually 80% of the peak annual rate of construction. By referring to the same, he submits that the same relates to only the State of Karnataka, whereas in Clause-3 of the eligibility criteria, the tenderer to qualify to supply should have supplied food items to any of the State, Central Government Department/Institutions/ Organizations in India, at least 80% of the requirement of the quantity mentioned in the tender document in any one of the three financial years – 2021-22, 2022-23 and 2023-24. Thus, he submits that by Clause-3, a person otherwise than carrying on business in Karnataka could also participate and secondly, he submits that 80% of the requirement being for any one financial year should have been for the earlier financial year, whereas in the present tender, the financial year taking into consideration is three earlier years. Thus, he submits that Clause-3 of the present tender violates Clause-4 of the standard terms. 13.22.By referring to Clause-9 of the tender terms, he submits that consortiums are not allowed to participate in the tender, which goes against the business principles in permitting different businesses to get together and participate in the tender. On all the above grounds, he submits that the writ petitions are required to be allowed. 14. Smt. Ratna N. Shivayogimath, learned counsel for petitioner in W.P.No.202390/2024 adopts the submissions of Sri.V. Srinivas, learned counsel. On all the above grounds, he submits that the writ petitions are required to be allowed. 14. Smt. Ratna N. Shivayogimath, learned counsel for petitioner in W.P.No.202390/2024 adopts the submissions of Sri.V. Srinivas, learned counsel. In addition, she relies on Clause-III of Clause-4.1 of the tender documents and submits that there is a preference which is required to be given to MSME categories and the eligibility prescribed in Clause-2 and 3 as regards the eligibility criteria at Clause-2 and 3 and for 15% price preference, she submits that this has not been made available to the petitioners, firstly on the ground that MSMEs would not be eligible to participate given the arbitrary increase in the qualification criteria and that MSMEs would not be able to participate in a tender constituted district-wise and claim the benefit of 15% price preference. 15. Sri. R.J.Bhusare, learned counsel appearing for the petitioner in W.P.No.202368/2024 also adopts the submissions of Sri. V. Srinivas, and Smt. Ratna N. Shivayogimath, learned counsels and reiterates their submissions. The other counsels adopt the submissions of the aforesaid counsels. 16. Sri. Y.H. VijayKumar, learned Additional Advocate General for the State would submit that; 16.1. The powers of judicial review in commercial contracts are limited, unless there is any arbitrary exercise of power established by the petitioners, this Court ought not to intervene in a commercial activity of the State. 16.2. The State has taken into consideration all the relevant aspects and thereafter, drafted the terms and conditions of the tender. He submits that the conditions of the tender on earlier occasions, when tenders were called for talukawise, the State and its authorities had to face severe criticism and problems, inasmuch as the supply which was made was of inferior quality. 16.3. Many a times, the children who consume the food, fell ill, the food articles were found to be adulterated and it is in that background that a Committee had been set up to look into these aspects and the Committee considered all the aspects and gave its recommendations and issued revised guidelines which were communicated by the Secretary to the Government, Department of Backward Classes Welfare to the Commissioner, Department of Backward Classes Welfare under cover of his letter dated 01.07.2024. The revised guidelines having been issued on 01.07.2024, the said guidelines have taken into consideration all the relevant aspects which are material for the purpose of inviting a tender, taking into consideration the interest of all stakeholders. The revised guidelines have been issued so as to protect the interest and wellbeing of the students. 16.4. The revised guidelines are reproduced hereunder for easy reference: Government of Karnataka No.Him Va Ka 499 BMS 2023 Karnataka Government Secretariat Vidhana Soudha Bangalore dated 01.07.2024 From: Secretary to Government Department of Backward Classes Welfare, Vikasa Soudha To: The Commissioner Department of Backward Classes Welfare, Bangalore Sir, Sub: Issuing revised guidelines for supply of food materials to Pre metric and post metric hostels and Ashrama schools of the Department of Backward Classes Welfare-reg Reference: 1. G.O.No, Him Va Ka 499 BMS 2023 dated 22-01-2024 2. Government letter no Him Va Ka 499 BMS 2023 dated 14-02-2024 With reference to the above subject an order is issued as in ref.1 for supply of food materials. to Pre metric and Post metric hostels and Ashrama schools of the Department and in the letter at ref.2 the Guidelines were enclosed and sent. At present the guidelines enclosed in Ref.2 is rescinded with immediate effect and the revised guidelines are enclosed with this letter. I am directed to request you to take necessary immediate action accordingly, Yours sincerely Sd/- (K.Ashwath) 1-07-25 Under Secretary to Government-2 Department of Backward Classes Welfare, Government Order No: Him Va Ka 499 BMS 2023 Dated:01.07.2024. Revised Guidelines for Inviting Tenders for Food Supply to Pre-Matric, Post-Matric and Ashram Schools of the Backward Classes Welfare Department. The following authorities have been appointed under the Karnataka Transparency in Public Procurement Act 1999 and Rules 2000 to invite a single tender to the district for supply of food items and other materials to Pre-Matric and Post-Matric Student Hostels and Ashram Schools of the Backward Classes Welfare Department. I. Tender Authority 1. Tender Inviting Authority District Backward Classes Welfare Officer. 2. Tender Accepting Authority District Level Food Commodities Purchase Committee 3. Tender Appellate Authority Secretary to Government, Backward Classes Welfare Department Bangalore. II. District Level Food commodites Purchase Committee 1. Deputy Commissioners of the respective district The President 2. Zilla Panchayat Chief Executive Officer Vice President 3. Deputy Director, Food and Civil Supplies Department Member 4. Joint Director, Department of Commerce and Industry Member 5. Tender Appellate Authority Secretary to Government, Backward Classes Welfare Department Bangalore. II. District Level Food commodites Purchase Committee 1. Deputy Commissioners of the respective district The President 2. Zilla Panchayat Chief Executive Officer Vice President 3. Deputy Director, Food and Civil Supplies Department Member 4. Joint Director, Department of Commerce and Industry Member 5. District Food Safety and Designated Officer Member 6. Chief Accounts officer, Zilla Panchayat Member 7. District Backward Classes Welfare Officer Member Functions of the Committee 1. The District Level Committee shall, as regards the respective district jurisdiction conduct the tender process in a transparent manner as per the order of the Government and the KTPP rules. 2. Tender shall be called District wise once in every two years. However, fresh tenders shall be invited immediately in the districts where the tender period has already expired. 3. The quantity of food items required for two years for the Pre-matric, Post-matric hostels and Ashram Schools coming under the jurisdiction of the Backward Classes Welfare Department shall be calculated and consolidated item-wise and a single tender shall be called and the quantity of food items required for the two-year period shall invariably be published in the tender notice. 4. While publishing the prices of all the materials is the sender, the committee shall get the prevailing market prices (Market Survey) from the Food and Civil Supplies Department, APMC and other wholesale markets including Super Markets and the average of the said prices shall be computed and the item-wise average price shall be fired. If there is significant difference in item-wise prices in the L-1 bid received in the tender from the fixed average prices shall get proper explanation by the bidder if necessary negotiate the rates and then issue the work order. If the tender of the successful bidder is seriously unbalanced in relation to the cost of the items to be procured under the contract, the procurement entity may require the bidder to produce detailed price analyses for any or all items of the Bill of Quantities, to demonstrate the internal consistency of those prices with the Market Price. If the tender of the successful bidder is seriously unbalanced in relation to the cost of the items to be procured under the contract, the procurement entity may require the bidder to produce detailed price analyses for any or all items of the Bill of Quantities, to demonstrate the internal consistency of those prices with the Market Price. After evaluations of the price analyses, the procurement entity may require that the amount of the performance security be obtained for a value as deemed fit at the expense of the successful Tenderer to a level sufficient to protect the procurement entity against financial loss in the event of default of the successful bidder under the contract. 5. It is the responsibility of the District Level Committee to ensure timely supply of food items to the hostels. 6. The conditions stipulated in the Government order shall be compulsorily followed while inviting tenders. Neither the conditions shall be breached nor amended for any reason what so ever. If desirous to get the conditions changed, the prior permission of the Government shall invariably be obtained. District Level Scrutiny Committee 1. Chief Executive Officer, Zilla Panchayat President 2. Deputy Director, Food and Civil Supplies Department Member 3. Joint Director, Department of Commerce and Industry Member 4. District Food Safety and Designated Officer Member 5. Chief Accounts officer, Zilla Panchayat Member 6. District Backward Classes Welfare Officer Member Functions of the Committee 1. District Level Scrutiny Committee shall Scrutiny entire documents submined by the bidders in the tender for their eligibility under the rules. 2. A minute shall be prepared recording the reasons detailing the eligible and ineligible bidders. 3. They shall check all the documents submitted by the bidders and prepare a comparative statement of preliminarily and technically qualified or disqualified bidders and recommend them to the tender accepting authority and obtain approval to open the financial bid. 4. They shall verify at the time of opening of tender technical bids as per Government Circular No: FD 850 EXP-12/15, Dt:15.12.2016 and FD 537 exp-12/2021 Dt 25/07/2022 the NSIC and Udyam registration certificates submitted by bidders to avail EMD exemption and rate preference of 15% available to MSE entrepreneurs and duly certify them. 5. To ensure the quality of food supplied by bidders it is requested while submitting technical bid to submit FSSAI license certificate (regarding applicable food materials). Such certificates shall be verified and attested. 5. To ensure the quality of food supplied by bidders it is requested while submitting technical bid to submit FSSAI license certificate (regarding applicable food materials). Such certificates shall be verified and attested. IV. District Level Food Quality Inspection and Monitoring Committee 1. Chief Executive Officer, Zilla Panchayat President 2. Deputy Director, Food and Civil Supplies Department Member 3. District Food Safety and Designated Officer Member 4. District Health Officer, Health and Family Welfare Department Member 5. District Backward Classes Welfare Officer Member Secretary Functions of the Committee 1. The said committee shall exercise full supervision over the quality of food supplies supplied to all the hostels in the district. 2. The Committee shall time to time hold a meeting and issue necessary instructions regarding food quality to the supervisors of all the hostels in the district, the representatives of the suppliers must attend the said meeting. 3. After the tenderers get the work order and supplied the first batch of supplied materials, the random samples of food materials supplied shall be compulsorily sent to the lab (From Govt. or NABL Accredited Laboratories) by randomly selecting ten hostels covering all the taluks of the district and the food quality shall be ascertained. Thereafter, once in every three months, the committee shall randomly select 10 hostels covering all the taluks of the district and submit random samples of the supplied food items to the lab test (from Govt. or NABL Accredited Laboratories) to ensure the quality. 4. The expenses for the said lab test shall be incurred from the grant provided by District sector account head: 2225-00-103-0-26(090). If it is found in the lab test that the quality of the food material supplied is not good, the tenderer should be notified about this, and the replacement of the food material be obtained. They shall send the sample of the replaced food material again for lab test, and the cost of the second time lab test should be borne by the supplier. (Applicable to each sample test done). 5. If it is found in the lab test that the quality of any of the food materials supplied is not good, the total quantity of the supplied batch of the said material should be withdrawn and the good quality material should be resupplied. (Applicable to each sample test done). 5. If it is found in the lab test that the quality of any of the food materials supplied is not good, the total quantity of the supplied batch of the said material should be withdrawn and the good quality material should be resupplied. A time of Rs.500- per day shall be levied on the said supplier during the period of food supply variation in between Further, it in the lah test theve out of four samples of the materials supplied by any one supplier are found to be of substandard, he shall be subjected is Debarment Process under section 25(A)(B)(C) vide notification No NO:FD 884 Exp-12/2019, Bangalore Dated 7th May 2020 B of KTPP rules amendment 6. They shall keep all lab test reports available for inspection at the district office concemod during the visit of the senior officers of the department and shall submit copies to the Commissioner's office. V. Tender Document (RFP): In order to facilitate district-wise render calling in uniform manmer across the state, "Model Tender Document" will be prepared by the Commissioner, Backward Classes Welfare Department and circulated to all District Backward Classes Welfare OffSens. The said tender document is only a model and the Welfare Officers of backward classes shall scrutinize the District Backward Classes document of the concerned districts and finallire the tender document and publish it only after finalizing the woder document after discussing it in the District Level Food Materials Purchase Committee in accordance with the KTPP rules, notifications and circulars and Government ceders issued by the Government from time to time. The tender inviting authority concerned shall be directly responsible for any defects found in the tender documents. VI. Minimum criteria to be fixed regarding eligibility of tenderers. 1. The tenderer should be engaged in foodstuff supply activity for at least more than 5 years 2. The said bidder should be a registered organisation society/company/proprietorship firm parmership firm (in this regard appropriate pres shall be submitted) 3. The Bidders should have obtained certificate (for applicable food items) from the Food Safety and Standards Authority of India (FSSAI). 4. The average annual financial turnover of the bidder during the preceding 3 financial years ie, 2020-2021, 2021-22 and 2022-23 should be twice the estimated cost of the quantity memtioned in the Tender Document 5. The Bidders should have obtained certificate (for applicable food items) from the Food Safety and Standards Authority of India (FSSAI). 4. The average annual financial turnover of the bidder during the preceding 3 financial years ie, 2020-2021, 2021-22 and 2022-23 should be twice the estimated cost of the quantity memtioned in the Tender Document 5. The tenderer should have supplied food items to any of State Central Government Department Institutions Organizations in India at least 80% of the requirement of the quantity mentioned in the Tender Document in any one of the last 3 financial years, 2021-2022 2022- 23 and 2023-24. 6. Regarding the Bidding Capacity of Tenderers conditions shall be prescribed in the render documents as per the Government Circular No: PWD 1359 SO/FC 2001 (P-2) Dated: 03.12.2002. 7. There shall be a proper office and go down warehouse for the storage of food items at the district level concerned. In the absence of which, if the bidder receives a tender, within 30 days from the date of work order, an undertaking agreeing to provide a suitable office and a suitable go down/warehouse for the storage of food items in the district should be issued (In this regard the District Level Tender Scrutiny Committee shall visit the site and ascertain such arrangements). VII. Other measures to be taken by the District Level Purchase Committee. 1 The rice and wheat procured at ration rates shall be lifted by the successful tenderers from the warehouses of the Food Corporation of India and shall be supplied directly to the hostels. The rice and wheat lifted shall not be stored by the bidders in their go downs for any reason whatsoever. The transportation cost incurred for this should be given to the supplier. A provision shall be made in the financial bid in the tender document to enter the transportation cost. 2. The Bidders must install GPS in their supply vehicles, record the Geo Location of the vehicle during delivery and attach a printed copy of the information available in the GPS software to the invoice for payment in order to confirm that the food items have been supplied to the doorsteps of the hostels/ashram schools. 3. Method of calling tender: The commodities shall be divided into separate groups (A,B,C,D...) Perishable, Non-Perishable and other materials and a single tender notice shall be issued. 3. Method of calling tender: The commodities shall be divided into separate groups (A,B,C,D...) Perishable, Non-Perishable and other materials and a single tender notice shall be issued. While placing tender in Public Procurement Portal Non-ECV element be selected. 4. The Bidders participating in the tender shall compulsorily quote the rates for each item, in case of not mentioning the rates for any of the items, the tenders shall be rejected, while accepting the financial bids, the bidder who has quoted the lowest rate for the total value of all the materials of all the groups shall be selected as L1. 5. The successful bidder after receiving the work order, within 21 days, shall enter into a contract by obtaining a bank guarantee or e-bank guarantee from a nationalized bank for 5% performance security on the amount fixed for the tender (Performance Security should be valid for 30 months). 6. The taluk level officer shall consolidate the demand list for all the hostels/ashram schools of a taluk and issue indent to the approved suppliers by 25th of every month. The supplier shall supply the food commodities to the doorsteps of the hostels/ashram schools within 7 days from the date of receipt of such indent. In case the supply is not delivered within the stipulated time, a sum equivalent to 0.5% of the delivered price of the delayed goods or unperformed supplies/services for each week or part thereof shall be levied until actual delivery or performance, up to a maximum deduction of 10% of the contract price. Once the maximum is reached, the purchaser may consider termination of the contract pursuant to the general conditions of the contract. 7. After the finalization of the tender, a written contract should be entered in to, between the bidders and the district level officers concerned within 21 days of issuing of work order, and the quality and rates agreed in the said contract should be delivered to the doorsteps of the hostel within the specified time and a delivery note should be issued compulsorily. It will be the primary responsibility of the concerned Taluk Welfare Officers/District Backward Classes Welfare Officers to receive the supply of the food commodities at the doorsteps of the hostel. 8. The supply of Food commodities shall be received in the presence of hostel warden/hostel 8 supervisor, student representative of the hostel (on rotation basis) and the cook. It will be the primary responsibility of the concerned Taluk Welfare Officers/District Backward Classes Welfare Officers to receive the supply of the food commodities at the doorsteps of the hostel. 8. The supply of Food commodities shall be received in the presence of hostel warden/hostel 8 supervisor, student representative of the hostel (on rotation basis) and the cook. The Taluk backward classes welfare officer concerned should visit the hostels on random basis and check the food materials supplied. 9. In case any of the food items supplied to the hostels are found to be of substandard quality, the supplier shall be responsible for immediately replacing such food items to the respective hostels/Ashram schools. 10. Eligible bidders shall supply fresh vegetables to the hostels twice a week as per demand. 11 . The District Backward Classes Welfare Officers/Taluk Backward Classes Welfare Officers shall visit the hostels and submit a report from time to time to the District Level Quality Inspection and Supervision Committee regarding the proper supply of food items of approved quality by the suppliers and the correct quantity of food items are served to the students by the hostel wardens/wardens/supervisors of the hostels. 12. The District Level Food Materials Purchase Committee shall hold a meeting at least once in 3 months under the chairmanship of the Deputy Commissioner, check the proper supply of food materials to all the hostels, and take appropriate action if there are any grievances and complaints about the quality. 13. The guidelines dated: 14.02.2024 issued vide order dated: 22.01.2024 are hereby rescinded with immediate effect. Sd/- (K.Ashwath)07/24 No: Hin Va Ka 499 BMS 2023 Under Secretary to Govt.-2 Backward Classes Welfare Department. 16.5. He submits that these guidelines have been followed while issuing the present tender notification. Furthermore, different Committees have been formed to look into different aspects of the tender, like supply, purchase, scrutiny, food quality and inspection. A monitoring mechanism has also been established, as could be seen from the revised guidelines. 16.6. These guidelines have been formulated after a detailed study by a Committee formulated in that regard, there is an application of mind by the State which cannot be found fault with by the petitioners in the manner it is done. 16.7. A monitoring mechanism has also been established, as could be seen from the revised guidelines. 16.6. These guidelines have been formulated after a detailed study by a Committee formulated in that regard, there is an application of mind by the State which cannot be found fault with by the petitioners in the manner it is done. 16.7. The State and its authorities have acted in the interest of the schools and the children so as to obviate any adulteration and/or improper quality of food grains and articles being supplied. 16.8. There is an inspection and monitoring committee which has been set up. The same cannot be done at the taluka level and as such, being done at the district level, supervising over each of the talukas, the State in its wisdom is of the opinion that the tender can only be district-wise and not taluka-wise and as such, has issued the present tender notification. 16.9. His submission is that there would be a proper electronic monitoring system to monitor the supply and consumption of food grains. The district level Food Quality Inspection Monitoring Committee would randomly select, the supply made, get the supply tested from a government or a NABL accredited laboratory. All these aspects would be webhosted on the website of the Department of Backward Classes Welfare so as to provide a transparent mechanism for the working of the tender. The test done, results of the test, the authority which has done the test would all be uploaded onto the website giving access to one and all to keep track of the quality of goods supplied. 16.10.He submits that once earlier the petitioners in W.P.No.202094/2024 and W.P.No.202263/2024 had approached this Court by filing W.P.No.201223/2024 and W.P.No.201224/2024, though they were represented by different counsels at that point of time, the orders passed on 14.05.2024 in the aforesaid matters has been suppressed by the petitioners. This Court, vide the aforesaid order dated 14.05.2024, has held that the condition for the change of calling for tenders from taluka to district-wise is in the wisdom of the State and this Court has declined to interfere in the matter and dismissed the writ petitions. 16.11.These orders have not even been brought to the notice of this Court, there is deliberate suppression of material facts which has resulted in the interim orders being passed. 16.11.These orders have not even been brought to the notice of this Court, there is deliberate suppression of material facts which has resulted in the interim orders being passed. If those orders had been brought to the notice of this Court, no interim order would have been passed and as such, he submits that on account of the petitioners not having approached this Court with clean hands and having suppressed the material facts, all the petitioners being aware of the orders passed by a Co-ordinate Bench of this Court, on the ground of deliberate suppression, the writ petitions would have to be dismissed. 16.12. He relies upon the decision of the Hon’ble Apex Court in Arun Kumar Agarwal vs Union of India, (2013) 7 SCC 1 , 2013 INSC 330, more particularly para nos. 41-49, 53 and 70 thereof, which have been reproduced hereunder for easy reference: 41. We notice that ONGC and the Government of India have considered various commercial and technical aspects flowing from the PSC and also its advantages that ONGC would derive if the Cairn and Vedanta deal was approved. This Court sitting in the jurisdiction cannot sit in judgment over the commercial or business decision taken by parties to the agreement, after evaluating and assessing its monetary and financial implications, unless the decision is in clear violation of any statutory provisions or perverse or taken for extraneous considerations or improper motives. States and its instrumentalities can enter into various contracts which may involve complex economic factors. State or the State undertaking being a party to a contract, have to make various decisions which they deem just and proper. There is always an element of risk in such decisions, ultimately it may turn out to be correct decision or a wrong one. But if the decision is taken bona fide and in public interest, the mere fact that decision has ultimately proved to be wrong, that itself is not a ground to hold that the decision was mala fide or taken with ulterior motives. 42. Matters relating to economic issues, have always an element of trial and error, so long as a trial and error is bona fide and with best intentions, such decisions cannot be questioned as arbitrary, capricious or illegal. 42. Matters relating to economic issues, have always an element of trial and error, so long as a trial and error is bona fide and with best intentions, such decisions cannot be questioned as arbitrary, capricious or illegal. This Court in State of M.P. v. Nandlal Jaiswal [ (1986) 4 SCC 566 ] referring to the judgment of Frankfurter, J. in Morey v. Doud [1 L Ed 2d 1485 : 354 US 457 (1957)] held that: (Nandlal Jaiswal case [ (1986) 4 SCC 566 ] , SCC p. 605, para 34) “34. … We must not forget that in complex economic matters every decision is necessarily empiric and it is based on experimentation or what one may call ‘trial and error method’ and, therefore, its validity cannot be tested on any rigid ‘a priori’ considerations or on the application of any straitjacket formula.” 43. In Metropolis Theatre Co. v. Chicago [57 L Ed 730 : 228 US 61 (1913)] the Supreme Court of the United States held as follows: (L Ed p. 734) “… The problems of Government are practical ones and may justify, if they do not require, rough accommodation, illogical, if may be, and unscientific. But even such criticism should not be hastily expressed. What is best is not always discernible; the wisdom of any choice may be disputed or condemned. Mere errors of Government are not subject to our judicial review. It is only its palpably arbitrary exercises which can be declared void….” 44. In LIC v. Escorts Ltd. [ (1986) 1 SCC 264 ] this Court held that: (SCC p. 344, para 102) “102. … The court will not debate academic matters or concern itself with intricacies of trade and commerce.” The Court held that: (SCC p. 344, para 102) “102. … When the State or an instrumentality of the State ventures into corporate world and purchases the shares of a company, it assumes to itself the ordinary role of a shareholder, and dons the robes of a shareholder, with all the rights available to such a shareholder. There is no reason why the State as a shareholder should be expected to state its reasons when it seeks to change the management, by a resolution of the company, like any other shareholder.” 45. There is no reason why the State as a shareholder should be expected to state its reasons when it seeks to change the management, by a resolution of the company, like any other shareholder.” 45. In Liberty Oil Mills v. Union of India [ (1984) 3 SCC 465 ] , this Court held that expertise in public and political, national and international economy is necessary, when one may engage in the making or in the criticism of an import policy. Obviously, courts do not possess the expertise and are consequently, incompetent to pass judgments on the appropriateness or the adequacy of a particular import policy. 46. In Villianur Iyarkkai Padukappu Maiyam v. Union of India [ (2009) 7 SCC 561 ] this Court held as follows: (SCC p. 605, para 169) “169. It is neither within the domain of the courts nor the scope of judicial review to embark upon an enquiry as to whether a particular public policy is wise or whether better public policy can be evolved. Nor are the courts inclined to strike down a policy at the behest of a petitioner merely because it has been urged that a different policy would have been fairer or wiser or more scientific or more logical. Wisdom and advisability of economic policy are ordinarily not amenable to judicial review. In matters relating to economic issues the Government has, while taking a decision, right to ‘trial and error’ as long as both trial and error are bona fide and within the limits of the authority. For testing the correctness of a policy, the appropriate forum is Parliament and not the courts.” 47. In Bajaj Hindustan Ltd. v. Sir Shadi Lal Enterprises Ltd. [ (2011) 1 SCC 640 ] , this Court held that: (SCC p. 655, para 40) “40. Economic and fiscal regulatory measures are a field where Judges should encroach upon very wearily as Judges are not experts in these matters.” 48. This Court in Bhavesh D. Parish v. Union of India [ (2000) 5 SCC 471 ] , took the view that: (SCC p. 473) “… in the context of the changed economic scenario, the expertise of people dealing with the subject should not be lightly interfered with. The consequences of such interdiction can have large-scale ramifications and can put the clock back for a number of years. The consequences of such interdiction can have large-scale ramifications and can put the clock back for a number of years. The process of rationalisation of the infirmities in the economy can be put in serious jeopardy and, therefore, it is necessary that while dealing with economic legislations, [this] Court, while not jettisoning its jurisdiction to curb arbitrary action or unconstitutional legislation, should interfere only in those few cases where the view reflected in the legislation is not possible to be taken at all.” 49. In Centre for Public Interest Litigation v. Union of India [ (2000) 8 SCC 606 ] , this Court held as follows: (SCC p. 621, para 20) “20. It is clear from the above observations of this Court that it will be very difficult for the courts to visualise the various factors like commercial/technical aspects of the contract, prevailing market conditions, both national and international and immediate needs of the country, etc. which will have to be taken note of while accepting the bid offer. In such a case, unless the court is satisfied that the allegations levelled are unassailable and there could be no doubt as to the unreasonableness, mala fide, collateral considerations alleged, it will not be possible for the courts to come to the conclusion that such a contract can be prima facie or otherwise held to be vitiated so as to call for an independent investigation, as prayed for by the appellants.” 53. We are of the view that on facts, as well as in law, ONGC and the Government of India have taken a prudent commercial and economic decision in the public interest. We are not prepared to say that the decision is mala fide or actuated by any extraneous or irrelevant considerations or improper motive. 70. In such circumstances, we find no merits in the writ petition which was filed without appreciating or understanding the scope of the decision or the decision-making process concerning economic and commercial matters which gives liberty to the State and its instrumentalities to take an appropriate decision after weighing the advantages and disadvantages of the same and this Court sitting in this jurisdiction, as already indicated, is not justified in interfering with those decisions, especially when there is nothing to show that those decisions are contrary to law or actuated by mala fide or irrelevant considerations. The writ petition, therefore, lacks merits. The writ petition, therefore, lacks merits. Hence, the same is dismissed. 16.13.By relying on Arun Kumar Agarwal's case, his submission is that the economic factors which are considered by the State cannot be questioned as arbitrary, capricious or illegal, so long as the same is bonafide, so long as the decision making process is proper and correct, the decision itself cannot be questioned. The State and its instrumentalities would be at liberty to make such decisions after weighing the advantages and disadvantages, which he submits the Court, would not be justified in interfering with those decisions, when there is nothing to show that those decisions are contrary to law or actuated by malafide or irrelevant consideration. In the present case, the State has taken into account the practical problems in implementation of a methodology for proper supply of food grains. The State being of the considered opinion that tenders would have to be called at the District level in order to maintain the quality and standards as revised the other earlier methodology, from supply at the Taluka level to the District level. This being made on the basis of the recommendation of a Committee, taking into consideration all relevant aspects, this Court ought not to intercede in the matter. 16.14.He relies upon the decision of the Hon’ble Apex Court in Peerless General Finance and Investment Co. Ltd. vs RBI, (1992) 2 SCC 343 , 1992 INSC 32, more particularly para nos. 31, 36, 37, 38 and 39 thereof, which have been reproduced hereunder for easy reference: 31. The function of the Court is to see that lawful authority is not abused but not to appropriate to itself the task entrusted to that authority. It is well settled that a public body invested with statutory powers must take care not to exceed or abuse its power. It must keep within the limits of the authority committed to it. It must act in good faith and it must act reasonably. Courts are not to interfere with economic policy which is the function of experts. It is not the function of the courts to sit in judgment over matters of economic policy and it must necessarily be left to the expert bodies. In such matters even experts can seriously and doubtlessly differ. Courts cannot be expected to decide them without even the aid of experts. 36. It is not the function of the courts to sit in judgment over matters of economic policy and it must necessarily be left to the expert bodies. In such matters even experts can seriously and doubtlessly differ. Courts cannot be expected to decide them without even the aid of experts. 36. Paragraph 5 of the directions relates to the minimum rate of return fixed at 10 per cent per annum for a deposit with a maturity of 10 years. It is a matter of common knowledge that in the present times even the public sector corporations and banks and other financial and non-financial companies pay interest at much more higher rates ranging from 14 to 18 per cent. Thus according to the above scheme the respondent companies and the others doing such business can easily earn a profit of 4 to 5 per cent on their investments. In case of a request of the depositors for repayment of the deposit before maturity then the amount payable by the company by way of interest etc., shall be 2 per cent less than what could have been ordinarily paid by the company by way of interest if the deposit had run the full contractual period. However, the question of repayment before maturity or after how many years will depend entirely on the terms and conditions of the contract of such deposit. Paragraph 12 of the directions of 1987 enjoins upon the company to disclose as liabilities in its books of accounts and balance sheets the total amount of deposits received together with interest, bonus, premium or other advantage, accrued or payable to the depositors. Under clause (a) to the explanation to clause 3 paragraph (6) “Aggregate amounts of liabilities” shall mean total amount of deposits received together with interest, premium, bonus or other advantage by whatever name called, accrued on the amount of deposits according to the terms of contract. Thus the company is required to deposit or invest the aggregate amounts of its liabilities having accrued on the amount of deposits according to the terms of contract. Without going into the figures shown in the various charts, it is clear that if the directions contained in paragraphs (6) and (12) of the directions of 1987 are to be carried out, the companies are not left to utilise any amount out of the deposits as working capital to meet the expenses. Without going into the figures shown in the various charts, it is clear that if the directions contained in paragraphs (6) and (12) of the directions of 1987 are to be carried out, the companies are not left to utilise any amount out of the deposits as working capital to meet the expenses. In our view the Reserve Bank is right in taking the stand that if these companies want to do their business, they should invest their own working capital and find such resources elsewhere with which the Reserve Bank has no concern. If we look at the Annual Report and Accounts of Peerless for the years 1988, 1989 and 1990 it is clear that it had conducted its business following the impugned directions of 1987 and still had earned substantial profits in these years. It is clear that Peerless is a company having been established as far back as in 1932 and had substantial funds to invest the entire amount of deposits and had met the expenses out of its accumulated profits of the past years. This shows that the business can be run and profit can be earned even after complying with the impugned directions of 1987 issued by the Reserve Bank. It is not the concern of this Court to find out as to whether actuarial method of accounting or any other method would be feasible or possible to adopt by the companies while carrying out the conditions contained in paragraphs (6) and (12) of the directions of 1987. The companies are free to adopt any mode of accounting permissible under the law but it is certain that they will have to follow the entire terms and conditions contained in the impugned directions of 1987 including those contained in paragraphs (6) and (12). It is not the function of the Court to amend and lay down some other directions and the High Court was totally wrong in doing so. The function of the Court is not to advise in matters relating to financial and economic policies for which bodies like Reserve Bank are fully competent. The Court can only strike down some or entire directions issued by the Reserve Bank in case the Court is satisfied that the directions were wholly unreasonable or violative of any provisions of the Constitution or any statute. The Court can only strike down some or entire directions issued by the Reserve Bank in case the Court is satisfied that the directions were wholly unreasonable or violative of any provisions of the Constitution or any statute. It would be hazardous and risky for the courts to tread an unknown path and should leave such task to the expert bodies. This Court has repeatedly said that matters of economic policy ought to be left to the government. While dealing with the validity of an order passed on September 30, 1977 fixing a retail price of mustard oil not exceeding Rs 10 per kilogram in exercise of powers conferred by Section 3 of the Essential Commodities Act, a bench of Seven Judges of this Court in Prag Ice & Oil Mills v. Union of India and Nav Bharat Oil Mills v. Union of India [ (1978) 3 SCC 459 : AIR 1978 SC 1296 : 1978 Cri LJ 1281] observed as under: (SCC p. 478, para 24) “We have listened to long arguments directed at showing us that producers and sellers of oil in various parts of the country will suffer so that they would give up producing or dealing in mustard oil. It was urged that this would, quite naturally, have its repercussions on consumers for whom mustard oil will become even more scarce than ever ultimately. We do not think that it is the function of this Court or of any court to sit in judgment over such matters of economic policy as must necessarily be left to the government of the day to decide. Many of them, as a measure of price fixation must necessarily be, are matters of prediction of ultimate results on which even experts can seriously err and doubtlessly differ. Courts can certainly not be expected to decide them without even the aid of experts.” 37. In Shri Sitaram Sugar Company Limited v. Union of India with U.P. State Sugar Corporation Ltd. v. Union of India [ (1990) 3 SCC 223 ] this Court observed as under: (SCC pp. 255-56, para 57) “Judicial review is not concerned with matters of economic policy. The Court does not substitute its judgment for that of the legislature or its agents as to matters within the province of either. The Court does not supplant the ‘feel of expert’ by its own views. 255-56, para 57) “Judicial review is not concerned with matters of economic policy. The Court does not substitute its judgment for that of the legislature or its agents as to matters within the province of either. The Court does not supplant the ‘feel of expert’ by its own views. When the legislature acts within the sphere of its authority and delegates power to an agent, it may empower the agent to make findings of fact which are conclusive provided such findings satisfy the test of reasonableness. In all such cases, judicial inquiry is confined to the question whether the findings of fact are reasonably based on evidence and whether such findings are consistent with the laws of the land.” 38. In R.K. Garg v. Union of India [ (1981) 4 SCC 675 , 690 : 1982 SCC (Tax) 30] a Constitution Bench of this Court observed as under: (SCC pp. 690-91, para 8) “Another rule of equal importance is that laws relating to economic activities should be viewed with greater latitude than laws touching civil rights such as freedom of speech, religion etc. It has been said by no less a person than Holmes, J. that the legislature should be allowed some play in the joints, because it has to deal with complex problems which do not admit of solution through any doctrinaire or strait-jacket formula and this is particularly true in case of legislation dealing with economic matters, where, having regard to the nature of the problems required to be dealt with, greater play in the joints has to be allowed to the legislature. The Court should feel more inclined to give judicial deference to legislative judgment in the field of economic regulation than in other areas where fundamental human rights are involved. Nowhere has this admonition been more felicitously expressed than in Morey v. Doud [354 US 457 : 1 L Ed 2d 1485 (1957)] where Frankfurter, J. said in his inimitable style: ‘In the utilities, tax and economic regulation cases, there are good reasons for judicial self-restraint if not judicial deference to legislative judgment. The legislature after all has the affirmative responsibility. The courts have only the power to destroy, not to reconstruct. The legislature after all has the affirmative responsibility. The courts have only the power to destroy, not to reconstruct. When these are added to the complexity of economic regulation, the uncertainty, the liability to error, the bewildering conflict of the experts, and the number of times the judges have been overruled by events — self-limitation can be seen to be the path to judicial wisdom and institutional prestige and stability’.” 39. It may also be noted that it is not possible for the Court to determine as to how percentage of deposit of first instalment should be allowed towards expenses which may consist of commission to agents, office expenses etc. Even amongst the three companies — viz. Peerless, Timex and Favourite, there is a difference in this regard. According to the Peerless 25 per cent, Timex 50 per cent and Favourite 60 per cent of the deposits of the first instalment would be necessary for generating the working capital for meeting the genuine expenses. Thus it would depend from company to company based on various factors such as paid-up capital, percentage of commission paid to the agents, rate of interest paid to the depositors, period of maturity for repayment, office expenses and various other factors necessary to mop up working capital out of the depositors' money. We cannot ignore the possibility of persons having no stake of their own starting such business and after collecting huge deposits from the investors belonging to the poor and weaker sections of the society residing in rural areas, and to stop such business after a few years and thus devouring the hard earned money of the small investors. It cannot be lost sight of that in such kind of business, the agents always take interest in finding new depositors because they get a high rate of commission out of the first instalment, but they do not have same enthusiasm in respect of deposit of subsequent instalments. In these circumstances, if the Reserve Bank has issued the directions of 1987 to safeguard the larger interest of the public and small depositors it cannot be said that the directions are so unreasonable as to be declared constitutionally invalid. In these circumstances, if the Reserve Bank has issued the directions of 1987 to safeguard the larger interest of the public and small depositors it cannot be said that the directions are so unreasonable as to be declared constitutionally invalid. 16.15.By relying upon the decision in Peerless General Finance’s case, he submits that judicial review is not concerned with matters of economic policy and the Court ought not to substitute its judgment for that of the legislature or its agents. If the decision is reasonably based on evidence, then this Court ought not to intercede. The function of the Court is therefore limited to see that lawful authority is not abused. The function is not to appropriate to itself the task entrusted with such authority, so long as there is no abuse of the authority and the authority is within the limits, as also the decision and actions taken are in good faith, the Court ought not to interfere with the policy of the State. Insofar as the present case is concerned, he submits that the decision taken by the State to call for tenders at the District level, increase the period from one year to two years, permit competition across the country by enabling tenderers to bid for the tender, even if they are located outside the State of Karnataka and at the same time, setting up a monitoring mechanism is with an intention to better service the students who are to be provided food at the respective schools and law schools. The consideration which has been taken by the State is in the interest of such schools and students. There is absolutely no malafide which has been established by the petitioners, let alone established and as such, he submits that the Writ Petition is required to be dismissed. 16.16.He relies upon the decision of the Hon’ble Apex Court in Federation of Railway Officers Association vs Union of India, (2003) 4 SCC 289 , 2003 INSC 178, more particularly para nos. 7, 8, 9, 10, 11 and 12 thereof, which have been reproduced hereunder for easy reference: 7. 16.16.He relies upon the decision of the Hon’ble Apex Court in Federation of Railway Officers Association vs Union of India, (2003) 4 SCC 289 , 2003 INSC 178, more particularly para nos. 7, 8, 9, 10, 11 and 12 thereof, which have been reproduced hereunder for easy reference: 7. The learned Attorney-General also placed reliance on the decision of this Court in Rustom Cavasjee Cooper v. Union of India [ (1970) 1 SCC 248 : (1970) 3 SCR 530 ] wherein whether a right arising under Article 19(1)(g) is not protected against operation of any law imposed in the interest of the general public to be reasonable restrictions on the exercise of the right conferred by the said sub-clause was considered. In this context, an argument was raised that the enactment of bank nationalisation was not in the larger interest of the nation but to subserve political ends, that is, not with the object to ensure better banking facilities, or to make them available to a wider public, but only to take control over the deposits of the public with the major banks, and to use them as a political lever against industrialists who had built up industries by decades of industrial planning and careful management and the Court's attention was invited to a mass of evidence from the speeches of the Deputy Prime Minister and of the Governor and the Deputy Governor of Reserve Bank and also extracts from the Reserve Bank bulletins issued from time to time and other statistical information collected from official sources in support of the thesis of the petitioner that the performance of the named banks exceed the targets laid down by Reserve Bank in its directives; that the named banks had effectively complied with the requirements of the law and they had served the diverse interests including the small-scale sector and so on. On the other hand, the learned Attorney-General in that case contended that the commercial banks followed a conservative policy because they had to look primarily to the interests of the shareholders and on that account could not adopt bold policies or schemes for financing the needy and worthy causes and that if the resources of the banking industry are properly utilised for the weaker sections of the people economic regeneration of the nation may be speedily achieved; that 28% of the towns in India were not served by commercial banks; that there had been unequal development of facilities in different parts of the country and deserving sections were deprived of the benefit of an important national resource resulting in economic disparities. 8. This Court held that court is not the forum in which these conflicting claims may be debated; that whether there is a genuine need for banking facility in the rural areas, whether certain classes of the community are deprived of the benefit of the resources of the banking industry, whether administration by the Government of the commercial banking sector will not prove beneficial to the community and will lead to rigidity in the administration, whether the government administration will eschew the profit motive and even if it be eschewed, there will accrue substantial benefits to the public, whether an undue accent on banking as a means of social regeneration, especially in the backward areas, is a doctrinaire approach to a rational order of priorities for attaining the national objectives enshrined in our Constitution and whether the policy followed by the Government in office or the policy propounded by its opponents may reasonably attain the national objectives are matters which have little relevance in determining the legality of the measure and it is again not for this Court to consider the relative merits of the different political theories or economic policies. 9. The learned Attorney-General also relied upon the decision in BALCO Employees' Union (Regd.) v. Union of India [ (2002) 2 SCC 333 ] wherein it is observed that: (SCC p. 362, para 46) “46. It is evident from the above that it is neither within the domain of the courts nor the scope of the judicial review to embark upon an enquiry as to whether a particular public policy is wise or whether better public policy can be evolved. It is evident from the above that it is neither within the domain of the courts nor the scope of the judicial review to embark upon an enquiry as to whether a particular public policy is wise or whether better public policy can be evolved. Nor are our courts inclined to strike down a policy at the behest of a petitioner merely because it has been urged that a different policy would have been fairer or wiser or more scientific or more logical.” 10. The learned Attorney-General also pointed out similar observations in Narmada Bachao Andolan v. Union of India [ (2000) 10 SCC 664 ] . 11. Dr Pal insisted that the provisions of Section 3 of the Act provide the norms upon which a railway zone can be formed and that is administrative efficiency. Shri Prashant Bhushan and Dr Pal have, as set forth earlier, contended that on the basis of the material placed by them the formation of zones now under challenge will only result in deterioration of the efficiency of the administrative system and not improve, while the stand of the learned Attorney-General is that the Government has taken note of the workload index, geographical spread, strength of manpower, traffic streams and patterns for determining optimum size of a zone or a division and, in this context, territorial, ethnic, linguistic or such other considerations are not the basis for reorganisation of the railway zones. 12. In examining a question of this nature where a policy is evolved by the Government judicial review thereof is limited. When policy according to which or the purpose for which discretion is to be exercised is clearly expressed in the statute, it cannot be said to be an unrestricted discretion. On matters affecting policy and requiring technical expertise the court would leave the matter for decision of those who are qualified to address the issues. Unless the policy or action is inconsistent with the Constitution and the laws or arbitrary or irrational or abuse of power, the court will not interfere with such matters. 16.17.By relying on Federation of Railway Officers Association’s case, he submits that the policy of the Government is not amenable for judicial review. Unless the policy or action is inconsistent with the Constitution and the laws or arbitrary or irrational or abuse of power, the court will not interfere with such matters. 16.17.By relying on Federation of Railway Officers Association’s case, he submits that the policy of the Government is not amenable for judicial review. Whenever there are matters affecting policy and/or required technical expertise, the Court ought to leave the matter of the decision making to those who are qualified, unless the policy or action is inconsistent with the Constitution and the laws, for arbitrary or irrational or would amount to abuse of power. In the present case, he submits that none of these aspects have either been pleaded or established by the petitioners. The decision which has been taken by the State is on the basis of recommendation of committee constituted in this regard of the concerned experts. That decision cannot be negated on the basis of vague assertions or allegations made by the petitioners. 16.18.He relies upon the decision of the Hon’ble Apex Court in Dhampur Sugars (Kashipur) vs State of Uttranchal, (2007) 8 SCC 418 , 2007 INSC 963, more particularly para nos. 63-79, 81, 82 and 83 thereof, which have been reproduced hereunder for easy reference: 63. In our judgment, it is well settled that public authorities must have liberty and freedom in framing policies. No doubt, the discretion is not absolute, unqualified, unfettered or uncanalised and judiciary has control over all executive actions. At the same time, however, it is well established that courts are ill-equipped to deal with these matters. In complex social, economic and commercial matters, decisions have to be taken by governmental authorities keeping in view several factors, and it is not possible for courts to consider competing claims and conflicting interests and to conclude which way the balance tilts. There are no objective, justiciable or manageable standards to judge the issues nor such questions can be decided on a priori considerations. 64. As observed by Holmes, J. in Metropolis Theater Co. v. State of Chicago [57 L Ed 730 : 228 US 61 (1912)] in such matters, the courts must grant certain measure of “play in the joints” to the executive. 65. In the leading case of Bennett Coleman & Co. 64. As observed by Holmes, J. in Metropolis Theater Co. v. State of Chicago [57 L Ed 730 : 228 US 61 (1912)] in such matters, the courts must grant certain measure of “play in the joints” to the executive. 65. In the leading case of Bennett Coleman & Co. v. Union of India [ (1972) 2 SCC 788 : AIR 1973 SC 106 ] constitutional validity of the import policy for the newsprint adopted by the Government was challenged in this Court. The Court refused to adjudicate the policy matters unless it was shown to be arbitrary, capricious or mala fide. Speaking for the Court, Mathew, J. observed: (SCC p. 834, para 125) “125. … The argument of the petitioners that Government should have accorded greater priority to the import of newsprint to supply the need of all newspaper proprietor to the maximum extent is a matter relating to the policy of import and this Court cannot be propelled into the unchartered ocean of governmental policy.” (emphasis supplied) 66. Similarly, in State of Maharashtra v. Lok Shikshan Sanstha [ (1971) 2 SCC 410 : AIR 1973 SC 588 ] the applications made by the petitioners for opening new schools were rejected by the authorities. The said action was challenged by the petitioners by filing writ petitions in the High Court on various grounds. The High Court allowed the petitions and directed the authorities to grant permission to the petitioners to start schools. 67. Reversing the judgment, this Court observed that the High Court has thoroughly misunderstood the nature of the jurisdiction that was exercised by it. “9. … So long as there is no violation of any fundamental rights and if the principles of natural justice are not offended, it was not for the High Court to lay down the policy that should be adopted by the educational authorities in the matter of granting permission for starting schools. The question of policy is essentially for the State and such policy will depend upon an overall assessment and summary of the requirements of residents of a particular locality and other categories of persons for whom it is essential to provide facilities for education. The question of policy is essentially for the State and such policy will depend upon an overall assessment and summary of the requirements of residents of a particular locality and other categories of persons for whom it is essential to provide facilities for education. If the overall assessment is arrived at after a proper classification on a reasonable basis, it is not for the courts to interfere with the policy leading up to such assessment.” [Ibid., SCC p. 415, para 9] (emphasis supplied) 68. In R.K. Garg v. Union of India [ (1981) 4 SCC 675 : 1982 SCC (Tax) 30 : AIR 1981 SC 2138 : (1982) 1 SCR 947 ] constitutional validity of the Special Bearer Bonds (Immunities and Exemptions) Act, 1981 was challenged being arbitrary and having no reasonable nexus with the object sought to be achieved. Holding the Act intra vires and constitutional and describing it as a policy legislation, the majority stated: (SCC p. 691, para 8) “8. … The Court must always remember that ‘legislation is directed to practical problems, that the economic mechanism is highly sensitive and complex, that many problems are singular and contingent, that laws are not abstract propositions and do not relate to abstract units and are not to be measured by abstract symmetry’, ‘that exact wisdom and nice adaption of remedy are not always possible’ and that ‘judgment is largely a prophecy based on meagre and uninterrupted experience’. Every legislation particularly in economic matters is essentially empiric and it is based on experimentation or what one may call trial and error method and therefore it cannot provide for all possible situations or anticipate all possible abuses. There may be crudities and inequities in complicated experimental economic legislation but on that account alone it cannot be struck down as invalid.” (emphasis supplied) 69. In Liberty Oil Mills v. Union of India [ (1984) 3 SCC 465 ] dealing with the import and export policy followed by the Government, this Court observed: (SCC p. 478, para 6) “6. There may be crudities and inequities in complicated experimental economic legislation but on that account alone it cannot be struck down as invalid.” (emphasis supplied) 69. In Liberty Oil Mills v. Union of India [ (1984) 3 SCC 465 ] dealing with the import and export policy followed by the Government, this Court observed: (SCC p. 478, para 6) “6. … The import policy of any country, particularly a developing country, has necessarily to be tuned to its general economic policy founded upon its constitutional goals, the requirements of its internal and international trade, its agricultural and industrial development plans, its monetary and financial strategies and last but not the least the international political and diplomatic overtones depending on ‘friendship, neutrality or hostility with other countries’. There must also be a considerable number of other factors which go into the making of an import policy. Expertise in public and political, national and international economy is necessary before one may engage in the making or in the criticism of an import policy. Obviously courts do not possess the expertise and are consequently incompetent to pass judgment on the appropriateness or the adequacy of a particular import policy.” (emphasis supplied) 70. Again, in State of M.P. v. Nandlal Jaiswal [ (1986) 4 SCC 566 : AIR 1987 SC 251 : JT 1986 SC 701] a licence to run liquor shop granted in favour of A was challenged as arbitrary and unreasonable. This Court held that there was no fundamental right in a citizen to carry on trade or business in liquor. However, the State was bound to act in accordance with law and not according to its sweet will or in an arbitrary manner and it could not escape the rigour of Article 14. Therefore, the contention that Article 14 would have no application in a case where the licence to manufacture or sell liquor was to be granted by the State Government was negatived by this Court. The Court, however, observed: (SCC p. 605, para 34) “34. But, while considering the applicability of Article 14 in such a case, we must bear in mind that, having regard to the nature of the trade or business, the court would be slow to interfere with the policy laid down by the State Government for grant of licences for manufacture and sale of liquor. But, while considering the applicability of Article 14 in such a case, we must bear in mind that, having regard to the nature of the trade or business, the court would be slow to interfere with the policy laid down by the State Government for grant of licences for manufacture and sale of liquor. The court would, in view of the inherently pernicious nature of the commodity allow a large measure of latitude to the State Government in determining its policy of regulating, manufacture and trade in liquor. Moreover, the grant of licences for manufacture and sale of liquor would essentially be a matter of economic policy where the court would hesitate to intervene and strike down what the State Government has done, unless it appears to be plainly arbitrary, irrational or mala fide.” (emphasis supplied) 71. Referring to the decision of the Supreme Court of the United States in Metropolis Theater Co. [57 L Ed 730 : 228 US 61 (1912)] the Court observed: (Nandlal Jaiswal case [ (1986) 4 SCC 566 : AIR 1987 SC 251 : JT 1986 SC 701] , SCC pp. 605-06, para 34) “34. … We must not forget that in complex economic matters every decision is necessarily empiric and it is based on experimentation or what one may call ‘trial and error method’ and, therefore, its validity cannot be tested on any rigid ‘a priori’ considerations or on the application of any straitjacket formula. The court must while adjudging the constitutional validity of an executive decision relating to economic matters grant a certain measure of freedom or ‘play in the joints’ to the executive. … ‘… Mere errors of Government are not subject to our judicial review. It is only its palpably arbitrary exercises which can be declared void….’ … The court cannot strike down a policy decision taken by the State Government merely because it feels that another policy decision would have been fairer or wiser or more scientific or logical. The court can interfere only if the policy decision is patently arbitrary, discriminatory or mala fide.” (emphasis supplied) 72. In Shri Sitaram Sugar Co. Ltd. v. Union of India [ (1990) 3 SCC 223 : AIR 1990 SC 1277 : JT (1990) 1 SC 462] prices of levy sugar were fixed by the Government by grouping sugar factories on the basis of geographical location. In Shri Sitaram Sugar Co. Ltd. v. Union of India [ (1990) 3 SCC 223 : AIR 1990 SC 1277 : JT (1990) 1 SC 462] prices of levy sugar were fixed by the Government by grouping sugar factories on the basis of geographical location. The said action was challenged by certain sugar companies as arbitrary, unreasonable and ultra vires. Dismissing the petitions and holding it to be a policy decision of the Central Government, this Court observed: (SCC p. 256, para 59) “59. … What is best for the sugar industry and in what manner the policy should be formulated and implemented, bearing in mind the fundamental object of the statute viz. supply and equitable distribution of essential commodity at fair prices in the best interest of the general public, is a matter for decision exclusively within the province of the Central Government. Such matters do not ordinarily attract the power of judicial review.” (emphasis supplied) 73. In Ugar Sugar Works Ltd. v. Delhi Admn. [ (2001) 3 SCC 635 : AIR 2001 SC 1447 : JT (2001) 4 SC 31] dealing with the executive policy regulating trade in liquor in Delhi, this Court stated that: (SCC p. 643, para 8) It was well settled that the courts, in exercise of power of judicial review do not ordinarily interfere with the policy decisions unless such policy could be faulted on the grounds of mala fide, unreasonableness, arbitrariness, unfairness, etc. But the mere fact that it would hurt business interests of a party would not justify invalidating the policy. In tax and economic regulation cases, there are good reasons for judicial restraint, if not judicial deference, to judgment of the executive. The courts are not expected to express their opinion as to whether at a particular point of time or in a particular situation any such policy should have been adopted or not. It is best left to the discretion of the State. (emphasis supplied) (See also SIEL Ltd. v. Union of India [ (1998) 7 SCC 26 : AIR 1998 SC 3076 ] .) 74. It is best left to the discretion of the State. (emphasis supplied) (See also SIEL Ltd. v. Union of India [ (1998) 7 SCC 26 : AIR 1998 SC 3076 ] .) 74. In BALCO Employees' Union (Regd.) v. Union of India [ (2002) 2 SCC 333 : AIR 2002 SC 350 : JT (2001) 10 SC 466] a decision of the Government of India of transferring its majority shares in favour of M/s Bharat Aluminium Company Ltd. was challenged by the employees as illegal, unlawful and ultra vires Articles 14 and 16 of the Constitution. Negativing the contention and upholding the decision of the Government, after referring to several cases on the point, this Court stated: (SCC p. 362, para 47) “47. Process of disinvestment is a policy decision involving complex economic factors. The courts have consistently refrained from interfering with economic decisions as it has been recognised that economic expediencies lack adjudicative disposition and unless the economic decision, based on economic expediencies, is demonstrated to be so violative of constitutional or legal limits on power or so abhorrent to reason, that the courts would decline to interfere. In matters relating to economic issues, the Government has, while taking a decision, right to ‘trial and error’ as long as both trial and error are bona fide and within limits of authority.” (emphasis supplied) 75. The State and its instrumentality has also power to change policy. The executive power is not limited to frame a particular policy. It has untrammelled power to change, rechange, adjust and readjust the policy taking into account the relevant and germane considerations. It is entirely in the discretion of the Government how a policy should be shaped. It should not, however, be arbitrary, capricious or unreasonable. 76. In Col. A.S. Sangwan v. Union of India [1980 Supp SCC 559 : 1981 SCC (L&S) 378 : AIR 1981 SC 1545 ] this Court observed that: (SCC p. 561, para 4) “4. … A policy once formulated is not good for ever; it is perfectly within the competence of the Union of India to change it, rechange it, adjust it and readjust it according to the compulsions of circumstances and the imperatives of national considerations.” 77. … A policy once formulated is not good for ever; it is perfectly within the competence of the Union of India to change it, rechange it, adjust it and readjust it according to the compulsions of circumstances and the imperatives of national considerations.” 77. In Union of India v. S.L. Dutta [ (1991) 1 SCC 505 : 1991 SCC (L&S) 406 : (1991) 15 ATC 737 : AIR 1991 SC 363 : JT (1990) 4 SC 741] the old policy of promotion was changed and new policy was adopted. The High Court interfered with the decision taken by the authorities observing that “the new promotion policy was not framed after an in-depth study” and directed the Government to consider the case of the petitioner on the basis of the old policy. 78. Setting aside the said order and upholding the policy, this Court observed: (SCC p. 513, para 18) “18. … These are matters regarding which judges and the lawyers of courts can hardly be expected to have much knowledge by reasons of their training and experience.” 79. In our opinion, Chagla, C.J. was right in making the following observations in State of Bombay v. Laxmidas Ranchhoddas [ AIR 1952 Bom 468 ] : (AIR p. 475, para 12) “12. … We are not oblivious of the fact that in order that the modern State should function the Government must be armed with very large powers. But the High Court does not interfere with the exercise of those powers. The High Court only interferes when it finds that those powers are not exercised in accordance with the mandate of the legislature. Therefore, far from interfering with the good governance of the State, the Court helps the good governance by constantly reminding Government and its officers that they should act within the four corners of the statute and not contravene any of the conditions laid down as a limitation upon their undoubtedly wide powers. Therefore, even from a practical point of view, even from the point of view of the good governance of the State, we think that the High Court should not be reluctant to issue its prerogative writ whenever it finds that the sovereign legislature has not been obeyed and powers have been assumed which the legislature never conferred upon the executive.” (emphasis supplied) 81. Now, it is well settled and needs no authority for holding that every power must be exercised bona fide and in good faith. Before more than hundred years, Lord Lindley said in General Assembly of Free Church of Scotland v. Overtoun [1904 AC 515 : 20 TLR 370 : (1904-1907) All ER Rep Ext 1448 (HL)] : “I take it to be clear that there is a condition implied in this as well as in other instruments which create power, namely, that the powers shall be used bona fide for the purpose for which they are conferred.” In other words, every action of a public authority must be based on utmost good faith, genuine satisfaction and ought to be supported by reason and rationale. It is, therefore, not only the power but the duty of the court to ensure that all authorities exercise their powers properly, lawfully and in good faith. If powers are exercised with oblique motive, bad faith or for extraneous or irrelevant considerations, there is no exercise of power known to law and the action cannot be termed as action in accordance with law. 82. But as already discussed earlier, a court of law is not expected to propel into “the unchartered ocean” of government policies. Once it is held that the Government has power to frame and reframe, change and rechange, adjust and readjust policy, the said action cannot be declared illegal, arbitrary or ultra vires the provisions of the Constitution only on the ground that the earlier policy had been given up, changed or not adhered to. It also cannot be attacked on the plea that the earlier policy was better and suited to the prevailing situation. 83. Allegations of mala fide are serious in nature and they essentially raise a question of fact. It is, therefore, necessary for the person making such allegations to supply full particulars in the petition. If sufficient averments and requisite materials are not on record, the court would not make “fishing” or roving inquiry. Mere assertion, vague averment or bald statement is not enough to hold the action to be mala fide. It must be demonstrated by facts. It is, therefore, necessary for the person making such allegations to supply full particulars in the petition. If sufficient averments and requisite materials are not on record, the court would not make “fishing” or roving inquiry. Mere assertion, vague averment or bald statement is not enough to hold the action to be mala fide. It must be demonstrated by facts. Moreover, the burden of proving mala fide is on the person levelling such allegations and the burden is “very heavy” (vide E.P. Royappa v. State of T.N. [ (1974) 4 SCC 3 : 1974 SCC (L&S) 165 : (1974) 2 SCR 348 ] ). The charge of mala fide is more easily made than made out. As stated by Krishna Iyer, J. in Gulam Mustafa v. State of Maharashtra [ (1976) 1 SCC 800 : AIR 1977 SC 448 ] it is the last refuge of a losing litigant (see also Ajit Kumar Nag v. GM(PJ), Indian Oil Corpn. [ (2005) 7 SCC 764 : 2005 SCC (L&S) 1020] ). In the case on hand, except alleging that the policy was altered by the Government, to extend the benefit to Respondent 4, no material whatsoever has been placed on record by the appellant. We are, therefore, unable to uphold the contention of the learned counsel that the impugned action is mala fide or malicious. 16.19.By relying on Dhampur Sugar’s case, he submits that the Government has power to frame and reframe, change and re-change, adjust and re-adjust policy. Such change or re-change cannot be declared illegal or arbitrary or ultravires the Constitution only on the ground that the earlier policy has been given up. The State is required to have play in the joints, so as to make such changes, modifications or improvements from time to time as may be necessary to better achieve the objectives of the Government. Merely because the State in the present matter had earlier been issuing tender notifications, taluka wise, it is not required for the State to continue issuance of tenders taluka wise in future also. It is up to the State to consider any modification and as such, the State has modified the policy now from taluka to district wise tenders. There being no malafides established, the burden of proving malafides being on the petitioners, such burden being a very heavy burden, this Court ought not to intercede in the present matter. It is up to the State to consider any modification and as such, the State has modified the policy now from taluka to district wise tenders. There being no malafides established, the burden of proving malafides being on the petitioners, such burden being a very heavy burden, this Court ought not to intercede in the present matter. 16.20.He relies upon the decision of the Hon’ble Apex Court in PTR Exports vs Union of India, (1996) 5 SCC 268 , 1996 INSC 656, more particularly para no. 3 thereof, which has been reproduced hereunder for easy reference: 3. In the light of the above policy question emerges whether the Government is bound by the previous policy or whether it can revise its policy in view of the changed potential foreign markets and the need for earning foreign exchange? It is true that in a given set of facts, the Government may in the appropriate case be bound by the doctrine of promissory estoppel evolved in Union of India v. Indo-Afghan Agencies Ltd. [ (1968) 2 SCR 366 : AIR 1968 SC 718 ] But the question revolves upon the validity of the withdrawal of the previous policy and introduction of the new policy. The doctrine of legitimate expectations again requires to be angulated thus: whether it was revised by a policy in the public interest or the decision is based upon any abuse of the power? The power to lay policy by executive decision or by legislation includes power to withdraw the same unless in the former case, it is by mala fide exercise of power or the decision or action taken is in abuse of power. The doctrine of legitimate expectation plays no role when the appropriate authority is empowered to take a decision by an executive policy or under law. The court leaves the authority to decide its full range of choice within the executive or legislative power. In matters of economic policy, it is a settled law that the court gives a large leeway to the executive and the legislature. Granting licences for import or export is by executive or legislative policy. Government would take diverse factors for formulating the policy for import or export of the goods granting relatively greater priorities to various items in the overall larger interest of the economy of the country. Granting licences for import or export is by executive or legislative policy. Government would take diverse factors for formulating the policy for import or export of the goods granting relatively greater priorities to various items in the overall larger interest of the economy of the country. It is, therefore, by exercise of the power given to the executive or as the case may be, the legislature is at liberty to evolve such policies. 16.21.By relying on PTR Exports’ case, he once again submits that the Government is not bound by the previous policy. It can always revise its policy, so long as the policy is in public interest and such change in policy is not an abuse of power. In the present case, the revision in the policy from taluka level tenders to district level tenders being in the interest of general public, more particularly the students of the schools, the petitioners cannot claim legitimate expectation on the ground that till now the tenders have been issued taluka wise and as such, they will have to be continued to be issued taluka wise. 16.22.He relies upon the decision of the Hon’ble Apex Court in BALCO Employees Union vs Union of India, (2002) 2 SCC 333 , 2001 INSC 601, more particularly para no. 93 thereof, which has been reproduced hereunder for easy reference: 93. Wisdom and advisability of economic policies are ordinarily not amenable to judicial review unless it can be demonstrated that the policy is contrary to any statutory provision or the Constitution. In other words, it is not for the courts to consider relative merits of different economic policies and consider whether a wiser or better one can be evolved. For testing the correctness of a policy, the appropriate forum is Parliament and not the courts. Here the policy was tested and the motion defeated in the Lok Sabha on 1-3-2001. 16.23.By relying on BALCO Employees Union case, he submits that economic policies are not amenable for judicial review unless such policy is demonstrably shown to be contrary to any statutory provision of the Constitution. In the present case, nothing of that kind has been demonstrated. The claim of the petitioners is completely misconceived. 16.24.He relies upon the decision of this Hon’ble Court in Tungamma vs State of Karnataka, ILR 2001 KAR 2785, more particularly para no. 2 thereof, which has been reproduced hereunder for easy reference: 2. In the present case, nothing of that kind has been demonstrated. The claim of the petitioners is completely misconceived. 16.24.He relies upon the decision of this Hon’ble Court in Tungamma vs State of Karnataka, ILR 2001 KAR 2785, more particularly para no. 2 thereof, which has been reproduced hereunder for easy reference: 2. Petitioners have contended in the writ petition that, at an election held on 24-7-1997 petitioners and 2 others were elected for the Committee, while 3 others were nominated to the Committee of management of Davangere, APMC. The term of office was for 5 years. The third respondent herein was elected as the President of the Committee. While the Committee was functioning, respondent 1 issued a notification dated 28-6-1999 vide Annexure-B proposing to bifurcate the APMC, Davangere and inviting objections. Petitioner/Committee had passed a resolution opposing the bifurcation. Though respondent had notified the proposal hut did not take any further action on this proposal, until a vote of no confidence was moved against the 3rd respondent-President on 15-11-2000 charging the latter of showing undue favour in allotting certain land to Bapuji Bank under the control of the Hon'ble Minister Mallikar-jun, similarly allotting two acres of land to the cold storage to one I.P. Vishwaradhya, Chairman of sister concern of Bapuji Education Association besides selling shops to the tenants though the shops were fetching huge rents of Rs. 50,000/-p.m. and without prior sanction awarding contract to the tune of two and half crores. It is only to frustrate this no confidence motion, the 3rd respondent influencing the Minister got the final notification Annexures-E and El under Section 145 published. The notifications Annexures-E and El is liable to be quashed on the grounds that the notifications are issued without applying its mind to the objections filed and providing opportunity to personally hear the petitioners and also on the ground of being issued with a mala fide intention to frustrate the no confidence motion. 16.25.He relies upon the decision of the Hon’ble Apex Court in Uflex Ltd. vs State of T.N., (2022) 1 SCC 165 , 2021 INSC 492, more particularly para nos. 1-7, 52 and 53 thereof, which have been reproduced hereunder for easy reference: 1. The enlarged role of the Government in economic activity and its corresponding ability to give economic “largesse” was the bedrock of creating what is commonly called the “tender jurisdiction”. 1-7, 52 and 53 thereof, which have been reproduced hereunder for easy reference: 1. The enlarged role of the Government in economic activity and its corresponding ability to give economic “largesse” was the bedrock of creating what is commonly called the “tender jurisdiction”. The objective was to have greater transparency and the consequent right of an aggrieved party to invoke the jurisdiction of the High Court under Article 226 of the Constitution of India (hereinafter referred to as “the Constitution”), beyond the issue of strict enforcement of contractual rights under the civil jurisdiction. However, the ground reality today is that almost no tender remains unchallenged. Unsuccessful parties or parties not even participating in the tender seek to invoke the jurisdiction of the High Court under Article 226 of the Constitution. The public interest litigation (“PIL”) jurisdiction is also invoked towards the same objective, an aspect normally deterred by the Court because this causes proxy litigation in purely contractual matters. 2. The judicial review of such contractual matters has its own limitations. It is in this context of judicial review of administrative actions that this Court has opined that it is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. The purpose is to check whether the choice of decision is made lawfully and not to check whether the choice of decision is sound. In evaluating tenders and awarding contracts, the parties are to be governed by principles of commercial prudence. To that extent, principles of equity and natural justice have to stay at a distance. [Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517 ] 3. We cannot lose sight of the fact that a tenderer or contractor with a grievance can always seek damages in a civil court and thus, “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”. [Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517 ] 4. In a sense the Wednesbury principle is imported to the concept i.e. the decision is so arbitrary and irrational that it can never be that any responsible authority acting reasonably and in accordance with law would have reached such a decision. [Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517 ] 4. In a sense the Wednesbury principle is imported to the concept i.e. the decision is so arbitrary and irrational that it can never be that any responsible authority acting reasonably and in accordance with law would have reached such a decision. One other aspect which would always be kept in mind is that the public interest is not affected. In the conspectus of the aforesaid principles, it was observed in Michigan Rubber (India) Ltd. v. State of Karnataka [Michigan Rubber (India) Ltd. v. State of Karnataka, (2012) 8 SCC 216 ] as under : (SCC p. 229, para 23) “23. From the above decisions, the following principles emerge: (a) The basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play. These actions are amenable to the judicial review only to the extent that the State must act validly for a discernible reason and not whimsically for any ulterior purpose. If the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities; (b) Fixation of a value of the tender is entirely within the purview of the executive and courts hardly have any role to play in this process except for striking down such action of the executive as is proved to be arbitrary or unreasonable. If the Government acts in conformity with certain healthy standards and norms such as awarding of contracts by inviting tenders, in those circumstances, the interference by Courts is very limited; (c) In the matter of formulating conditions of a tender document and awarding a contract, greater latitude is required to be conceded to the State authorities unless the action of tendering authority is found to be malicious and a misuse of its statutory powers, interference by Courts is not warranted; (d) Certain preconditions or qualifications for tenders have to be laid down to ensure that the contractor has the capacity and the resources to successfully execute the work; and (e) If the State or its instrumentalities act reasonably, fairly and in public interest in awarding contract, here again, interference by Court is very restrictive since no person can claim fundamental right to carry on business with the Government.” 5. One other aspect examined by this Court is whether the terms and conditions of the tender have been tailor-made to suit a person/entity. In fact, this is what is sought to be contended in the facts of the present case by the respondents who were the original petitioners before the Court. In order to award a contract to a particular party, a reverse engineering process is evolved to achieve that objective by making the tender conditions such that only one party may fit the bill. Such an endeavour has been categorised as “Decision Oriented Systematic Analysis” (for short “DOSA”). [Misrilall Mines (P) Ltd. v. MMTC Ltd., 2013 SCC OnLine Del 563] 6. The burgeoning litigation in this field and the same being carried to this Court in most matters was the cause we set forth an epilogue in Caretel Infotech Ltd. v. Hindustan Petroleum Corpn. Ltd. [Caretel Infotech Ltd. v. Hindustan Petroleum Corpn. Ltd., (2019) 14 SCC 81 ] Even if it amounts to repetition, we believe that it needs to be emphasised in view of the controversy arising in the present case to appreciate the contours within which the factual matrix of the present case has to be analysed and tested : (SCC pp. 92-95, paras 37-43) “37. We consider it appropriate to make certain observations in the context of the nature of dispute which is before us. Normally parties would be governed by their contracts and the tender terms, and really no writ would be maintainable under Article 226 of the Constitution of India. In view of Government and public sector enterprises venturing into economic activities, this Court found it appropriate to build in certain checks and balances of fairness in procedure. It is this approach which has given rise to scrutiny of tenders in writ proceedings under Article 226 of the Constitution of India. It, however, appears that the window has been opened too wide as almost every small or big tender is now sought to be challenged in writ proceedings almost as a matter of routine. This in turn, affects the efficacy of commercial activities of the public sectors, which may be in competition with the private sector. This could hardly have been the objective in mind. This in turn, affects the efficacy of commercial activities of the public sectors, which may be in competition with the private sector. This could hardly have been the objective in mind. An unnecessary, close scrutiny of minute details, contrary to the view of the tendering authority, makes awarding of contracts by Government and Public Sectors a cumbersome exercise, with long-drawn out litigation at the threshold. The private sector is competing often in the same field. Promptness and efficiency levels in private contracts, thus, often tend to make the tenders of the public sector a non-competitive exercise. This works to a great disadvantage to the Government and the public sector. 38. In Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd. [Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd., (2016) 16 SCC 818 ] , this Court has expounded further on this aspect, while observing that the decision-making process in accepting or rejecting the bid should not be interfered with. Interference is permissible only if the decision-making process is arbitrary or irrational to an extent that no responsible authority, acting reasonably and in accordance with law, could have reached such a decision. It has been cautioned that constitutional courts are expected to exercise restraint in interfering with the administrative decision and ought not to substitute their view for that of the administrative authority. Mere disagreement with the decision-making process would not suffice. 39. Another aspect emphasised is that the author of the document is the best person to understand and appreciate its requirements. In the facts of the present case, the view, on interpreting the tender documents, of Respondent 1 must prevail. Respondent 1 itself, appreciative of the wording of Clause 20 and the format, has taken a considered view. Respondent 3 cannot compel its own interpretation of the contract to be thrust on Respondent 1, or ask the Court to compel Respondent 1 to accept that interpretation. In fact, the Court went on to observe in the aforesaid judgment that it is possible that the author of the tender may give an interpretation that is not acceptable to the constitutional court, but that itself would not be a reason for interfering with the interpretation given. We reproduce the observations in this behalf as under : (Afcons Infrastructure case [Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd., (2016) 16 SCC 818 ] , SCC p. 825, para 15) ‘15. We reproduce the observations in this behalf as under : (Afcons Infrastructure case [Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd., (2016) 16 SCC 818 ] , SCC p. 825, para 15) ‘15. We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional courts must defer to this understanding and appreciation of the tender documents, unless there are mala fides or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional courts but that by itself is not a reason for interfering with the interpretation given.’ 40. We may also refer to the judgment of this Court in Nabha Power Ltd. v. Punjab State Power Corpn. Ltd. [Nabha Power Ltd. v. Punjab State Power Corpn. Ltd., (2018) 11 SCC 508 : (2018) 5 SCC (Civ) 1] authored by one of us (Sanjay Kishan Kaul, J.). The legal principles for interpretation of commercial contracts have been discussed. In the said judgment, a reference was made to the observations of the Privy Council in Attorney General of Belize v. Belize Telecom Ltd. [Attorney General of Belize v. Belize Telecom Ltd., 2009 Bus LR 1316 : (2009) 1 WLR 1988 (PC)] as under : (Nabha Power case [Nabha Power Ltd. v. Punjab State Power Corpn. Ltd., (2018) 11 SCC 508 : (2018) 5 SCC (Civ) 1] , SCC pp. 534-36, para 45) ‘45. … “16. Before discussing in greater detail the reasoning of the Court of Appeal, the Board will make some general observations about the process of implication. The court has no power to improve upon the instrument which it is called upon to construe, whether it be a contract, a statute or articles of association. It cannot introduce terms to make it fairer or more reasonable. It is concerned only to discover what the instrument means. However, that meaning is not necessarily or always what the authors or parties to the document would have intended. … *** 19. … In Trollope & Colls Ltd. v. North West Metropolitan Regl. Hospital Board [Trollope & Colls Ltd. v. North West Metropolitan Regl. It is concerned only to discover what the instrument means. However, that meaning is not necessarily or always what the authors or parties to the document would have intended. … *** 19. … In Trollope & Colls Ltd. v. North West Metropolitan Regl. Hospital Board [Trollope & Colls Ltd. v. North West Metropolitan Regl. Hospital Board, (1973) 1 WLR 601 (HL)] Lord Pearson, with whom Lord Guest and Lord Diplock agreed, said : (WLR p. 609) ‘… the court does not make a contract for the parties. The court will not even improve the contract which the parties have made for themselves, however desirable the improvement might be. The court's function is to interpret and apply the contract which the parties have made for themselves. If the express terms are perfectly clear and free from ambiguity, there is no choice to be made between different possible meanings : the clear terms must be applied even if the court thinks some other terms would have been more suitable. An unexpressed term can be implied if and only if the court finds that the parties must have intended that term to form part of their contract : it is not enough for the court to find that such a term would have been adopted by the parties as reasonable men if it had been suggested to them : it must have been a term that went without saying, a term necessary to give business efficacy to the contract, a term which, though tacit, formed part of the contract which the parties made for themselves.’ ” (Attorney General of Belize case [Attorney General of Belize v. Belize Telecom Ltd., 2009 Bus LR 1316 : (2009) 1 WLR 1988 (PC)] , WLR pp. 1993-94, paras 16 & 19)’ (emphasis in original) 41. Nabha Power Ltd. [Nabha Power Ltd. v. Punjab State Power Corpn. Ltd., (2018) 11 SCC 508 : (2018) 5 SCC (Civ) 1] also took note of the earlier judgment of this Court in Satya Jain v. Anis Ahmed Rushdie [Satya Jain v. Anis Ahmed Rushdie, (2013) 8 SCC 131 : (2013) 3 SCC (Civ) 738] , which discussed the principle of business efficacy as proposed by Bowen, L.J. in Moorcock [Moorcock, (1889) LR 14 PD 64 (CA)] . It has been elucidated that this test requires that terms can be implied only if it is necessary to give business efficacy to the contract to avoid failure of the contract and only the bare minimum of implication is to be there to achieve this goal. Thus, if the contract makes business sense without the implication of terms, the courts will not imply the same. 42. The judgment in Nabha Power Ltd. [Nabha Power Ltd. v. Punjab State Power Corpn. Ltd., (2018) 11 SCC 508 : (2018) 5 SCC (Civ) 1] concluded with the following observations in para 72 : (SCC p. 546) ‘72. We may, however, in the end, extend a word of caution. It should certainly not be an endeavour of commercial courts to look to implied terms of contract. In the current day and age, making of contracts is a matter of high technical expertise with legal brains from all sides involved in the process of drafting a contract. It is even preceded by opportunities of seeking clarifications and doubts so that the parties know what they are getting into. Thus, normally a contract should be read as it reads, as per its express terms. The implied terms is a concept, which is necessitated only when the Penta test referred to aforesaid comes into play. There has to be a strict necessity for it. In the present case, we have really only read the contract in the manner it reads. We have not really read into it any “implied term” but from the collection of clauses, come to a conclusion as to what the contract says. The formula for energy charges, to our mind, was quite clear. We have only expounded it in accordance to its natural grammatical contour, keeping in mind the nature of the contract.’ 43. We have considered it appropriate to, once again, emphasise the aforesaid aspects, especially in the context of endeavours of courts to give their own interpretation to contracts, more specifically tender terms, at the behest of a third party competing for the tender, rather than what is propounded by the party framing the tender. The object cannot be that in every contract, where some parties would lose out, they should get the opportunity to somehow pick holes, to disqualify the successful parties, on grounds on which even the party floating the tender finds no merit.” 7. The object cannot be that in every contract, where some parties would lose out, they should get the opportunity to somehow pick holes, to disqualify the successful parties, on grounds on which even the party floating the tender finds no merit.” 7. It may also be pertinent to note the principles elucidated in Tata Cellular v. Union of India [Tata Cellular v. Union of India, (1994) 6 SCC 651 ] : (SCC pp. 687-88, para 94) “94. The principles deducible from the above are: (1) The modern trend points to judicial restraint in administrative action. (2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made. (3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible. (4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts. (5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides. (6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure.” (emphasis in original) 52. We are thus unequivocally of the view that the impugned order cannot be sustained for all the aforesaid reasons and must be set aside and the appeals are accordingly allowed. 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. 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. 16.26.By relying on Uflex Ltd., case, his submission is that a bald allegation that the tender conditions have been drafted to suit a particular bidder, cannot be accepted unless there is sufficient pleadings and evidence to satisfy such an allegation. It is for the Petitioners to have made good the statement by stating as to for whose benefit or which tenderer's benefit the conditions have been tweaked and how such tweaking of conditions would work favourably to such a tenderer. The State and its instrumentalities issuing several thousands of tenders, the bonafide action of the State cannot be questioned in each of those tenders by making reckless and unsubstantiated allegations. Apart therefrom, he submits that if this Court were to entertain such baseless contentions, the tendering process itself would get delayed, thus having an impact not only on the State and its agencies, but also on the beneficiaries and the successful tenderer due to increase or otherwise of the cost. He again reiterates Wednesbury's principles of arbitrariness and submits that this Court ought to interfere only if the decision is so arbitrary and irrational that a responsible authority acting reasonably or in accordance with the law could not have reached such a decision. In the present case, the decision taken by the authorities, the methodology adopted by the authorities are reasonable. In the interest of all concerned, the bidders/tenderers are now put to account, and as such, the present Petitioners who do not wish to be held to account are making baseless allegations which are not substantiated in any manner, and therefore, the petition is liable to be dismissed by imposing exemplary cost. 16.27.He relies upon the decision of the Hon’ble Apex Court in National High Speed Rail Corpn. Ltd. vs Montecarlo Ltd. and Ors., (2022) 6 SCC 401 , 2022 INSC 124, more particularly para nos. 28 and 29 thereof, which have been reproduced hereunder for easy reference: 28. 16.27.He relies upon the decision of the Hon’ble Apex Court in National High Speed Rail Corpn. Ltd. vs Montecarlo Ltd. and Ors., (2022) 6 SCC 401 , 2022 INSC 124, more particularly para nos. 28 and 29 thereof, which have been reproduced hereunder for easy reference: 28. At this stage, few decisions of this Court on the interference by the courts in the tender matters are required to be referred to: 28.1. In Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd. [Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd., (2016) 16 SCC 818 ] , this Court in paras 11 to 13 and 15 has observed and held as under : (SCC pp. 824-25) “11. Recently, in Central Coalfields Ltd. v. SLL-SML (Joint Venture Consortium) [Central Coalfields Ltd. v. SLL-SML (Joint Venture Consortium), (2016) 8 SCC 622 : (2016) 4 SCC (Civ) 106] , it was held by this Court, relying on a host of decisions that the decision-making process of the employer or owner of the project in accepting or rejecting the bid of a tenderer should not be interfered with. Interference is permissible only if the decision-making process is mala fide or is intended to favour someone. Similarly, the decision should not be interfered with unless the decision is so arbitrary or irrational that the Court could say that the decision is one which no responsible authority acting reasonably and in accordance with law could have reached. In other words, the decision-making process or the decision should be perverse and not merely faulty or incorrect or erroneous. No such extreme case was made out by GYT-TPL JV in the High Court or before us. 12. In Dwarkadas Marfatia & Sons v. Port of Bombay [Dwarkadas Marfatia & Sons v. Port of Bombay, (1989) 3 SCC 293 ] , it was held that the constitutional courts are concerned with the decision-making process. Tata Cellular v. Union of India [Tata Cellular v. Union of India, (1994) 6 SCC 651 ] went a step further and held that a decision if challenged (the decision having been arrived at through a valid process), the constitutional courts can interfere if the decision is perverse. However, the constitutional courts are expected to exercise restraint in interfering with the administrative decision and ought not to substitute its view for that of the administrative authority. However, the constitutional courts are expected to exercise restraint in interfering with the administrative decision and ought not to substitute its view for that of the administrative authority. This was confirmed in Jagdish Mandal v. State of Orissa [Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517 ] , as mentioned in Central Coalfields Ltd. v. SLLSML (Joint Venture Consortium) [Central Coalfields Ltd. v. SLL-SML (Joint Venture Consortium), (2016) 8 SCC 622 : (2016) 4 SCC (Civ) 106] . 13. In other words, a mere disagreement with the decision-making process or the decision of the administrative authority is no reason for a constitutional court to interfere. The threshold of mala fides, intention to favour someone or arbitrariness, irrationality or perversity must be met before the constitutional court interferes with the decision-making process or the decision. *** 15. We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional courts but that by itself is not a reason for interfering with the interpretation given.” 28.2. In B.S.N. Joshi & Sons Ltd. v. Nair Coal Services Ltd. [B.S.N. Joshi & Sons Ltd. v. Nair Coal Services Ltd., (2006) 11 SCC 548 ] , after considering the various decisions of this Court on the point enumerated in para 66, this Court has observed and held as under : (SCC pp. 571-72) “66. In B.S.N. Joshi & Sons Ltd. v. Nair Coal Services Ltd. [B.S.N. Joshi & Sons Ltd. v. Nair Coal Services Ltd., (2006) 11 SCC 548 ] , after considering the various decisions of this Court on the point enumerated in para 66, this Court has observed and held as under : (SCC pp. 571-72) “66. We are also not shutting our eyes towards the new principles of judicial review which are being developed; but the law as it stands now having regard to the principles laid down in the aforementioned decisions may be summarised as under: (i) if there are essential conditions, the same must be adhered to; (ii) if there is no power of general relaxation, ordinarily the same shall not be exercised and the principle of strict compliance would be applied where it is possible for all the parties to comply with all such conditions fully; (iii) if, however, a deviation is made in relation to all the parties in regard to any of such conditions, ordinarily again a power of relaxation may be held to be existing; (iv) the parties who have taken the benefit of such relaxation should not ordinarily be allowed to take a different stand in relation to compliance with another part of tender contract, particularly when he was also not in a position to comply with all the conditions of tender fully, unless the court otherwise finds relaxation of a condition which being essential in nature could not be relaxed and thus the same was wholly illegal and without jurisdiction; (v) when a decision is taken by the appropriate authority upon due consideration of the tender document submitted by all the tenderers on their own merits and if it is ultimately found that successful bidders had in fact substantially complied with the purport and object for which essential conditions were laid down, the same may not ordinarily be interfered with; (vi) the contractors cannot form a cartel. If despite the same, their bids are considered and they are given an offer to match with the rates quoted by the lowest tenderer, public interest would be given priority; (vii) where a decision has been taken purely on public interest, the court ordinarily should exercise judicial restraint.” 28.3. If despite the same, their bids are considered and they are given an offer to match with the rates quoted by the lowest tenderer, public interest would be given priority; (vii) where a decision has been taken purely on public interest, the court ordinarily should exercise judicial restraint.” 28.3. In Michigan Rubber (India) Ltd. v. State of Karnataka [Michigan Rubber (India) Ltd. v. State of Karnataka, (2012) 8 SCC 216 ] , after considering various other decisions of this Court on the point, more particularly, after considering the decisions in Jagdish Mandal [Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517 ] and Tejas Constructions & Infrastructure (P) Ltd. v. Municipal Council, Sendhwa [Tejas Constructions & Infrastructure (P) Ltd. v. Municipal Council, Sendhwa, (2012) 6 SCC 464 ] , in paras 23 and 24, this Court has observed and held as under : (Michigan Rubber case [Michigan Rubber (India) Ltd. v. State of Karnataka, (2012) 8 SCC 216 ] , SCC p. 229) “23. From the above decisions, the following principles emerge: (a) The basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play. These actions are amenable to the judicial review only to the extent that the State must act validly for a discernible reason and not whimsically for any ulterior purpose. If the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities; (b) Fixation of a value of the tender is entirely within the purview of the executive and the courts hardly have any role to play in this process except for striking down such action of the executive as is proved to be arbitrary or unreasonable. If the Government acts in conformity with certain healthy standards and norms such as awarding of contracts by inviting tenders, in those circumstances, the interference by courts is very limited; (c) In the matter of formulating conditions of a tender document and awarding a contract, greater latitude is required to be conceded to the State authorities unless the action of the tendering authority is found to be malicious and a misuse of its statutory powers, interference by courts is not warranted; (d) Certain preconditions or qualifications for tenders have to be laid down to ensure that the contractor has the capacity and the resources to successfully execute the work; and (e) If the State or its instrumentalities act reasonably, fairly and in public interest in awarding contract, here again, interference by court is very restrictive since no person can claim a fundamental right to carry on business with the Government. 24. 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’? 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.” 28.4. In Central Coalfields Ltd. v. SLL-SML (Joint Venture Consortium) [Central Coalfields Ltd. v. SLL-SML (Joint Venture Consortium), (2016) 8 SCC 622 : (2016) 4 SCC (Civ) 106] , it is specifically observed and held by this Court that the Court must, as far as possible, avoid a construction which would render the words used by the author of the document meaningless and futile or reduce to silence any part of the document and make it altogether inapplicable. It is further observed that whether a term of NIT is essential or not is a decision taken by the employer, which should be respected and soundness of that decision cannot be questioned by Court. In the case before this Court, the bid was rejected for non-furnishing of bank guarantee in prescribed format. It is further observed that whether a term of NIT is essential or not is a decision taken by the employer, which should be respected and soundness of that decision cannot be questioned by Court. In the case before this Court, the bid was rejected for non-furnishing of bank guarantee in prescribed format. While submitting EMD by furnishing bank guarantee in format prescribed by GTC of another tender and the bidder took the plea that bank guarantee format of present tender was ambiguous. 28.5. Rejecting the claim of the bidder and upholding the decision of the employer of rejection of bid for noncompliance of submitting the bank guarantee in prescribed format, this Court in paras 31 to 38, 42 to 44, 47 to 49, 52, 55 and 56 has observed and held as under : (Central Coalfields case [Central Coalfields Ltd. v. SLLSML (Joint Venture Consortium), (2016) 8 SCC 622 : (2016) 4 SCC (Civ) 106] , SCC pp. 632-36 & 638-40) “31. We were informed by the learned Attorney General that 9 of the 11 bidders furnished a bank guarantee in the prescribed and correct format. Under these circumstances, even after stretching our credulity, it is extremely difficult to understand why JVC was unable to access the prescribed format for the bank guarantee or furnish a bank guarantee in the prescribed format when every other bidder could do so or why it could not seek a clarification or why it could not represent against any perceived ambiguity. The objection and the conduct of JVC regarding the prescribed format of the bank guarantee or a supposed ambiguity in NIT does not appear to be fully above board. 32. The core issue in these appeals is not of judicial review of the administrative action of CCL in adhering to the terms of NIT and the GTC prescribed by it while dealing with bids furnished by participants in the bidding process. The core issue is whether CCL acted perversely enough in rejecting the bank guarantee of JVC on the ground that it was not in the prescribed format, thereby calling for judicial review by a constitutional court and interfering with CCL's decision. 33. The core issue is whether CCL acted perversely enough in rejecting the bank guarantee of JVC on the ground that it was not in the prescribed format, thereby calling for judicial review by a constitutional court and interfering with CCL's decision. 33. In Ramana Dayaram Shetty v. International Airport Authority of India [Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489 ] , this Court held that the words used in a document are not superfluous or redundant but must be given some meaning and weightage : (SCC p. 500, para 7) ‘7. … It is a well-settled rule of interpretation applicable alike to documents as to statutes that, save for compelling necessity, the Court should not be prompt to ascribe superfluity to the language of a document ‘and should be rather at the outset inclined to suppose every word intended to have some effect or be of some use’. To reject words as insensible should be the last resort of judicial interpretation, for it is an elementary rule based on common sense that no author of a formal document intended to be acted upon by the others should be presumed to use words without a meaning. The court must, as far as possible, avoid a construction which would render the words used by the author of the document meaningless and futile or reduce to silence any part of the document and make it altogether inapplicable.’ 34. In Ramana Dayaram Shetty case [Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489 ] , the expression “registered IInd Class hotelier” was recognised as being inapt and perhaps ungrammatical; nevertheless common sense was not offended in describing a person running a registered IInd grade hotel as a registered IInd class hotelier. Despite this construction in its favour, Respondent 4 in that case were held to be factually ineligible to participate in the bidding process. 35. Despite this construction in its favour, Respondent 4 in that case were held to be factually ineligible to participate in the bidding process. 35. It was further held that if others (such as the appellant in Ramana Dayaram Shetty case [Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489 ] ) were aware that non-fulfilment of the eligibility condition of being a registered IInd class hotelier would not be a bar for consideration, they too would have submitted a tender, but were prevented from doing so due to the eligibility condition, which was relaxed in the case of Respondent 4. This resulted in unequal treatment in favour of Respondent 4 — treatment that was constitutionally impermissible. Expounding on this, it was held : (SCC p. 504, para 10) ‘10. … It is indeed unthinkable that in a democracy governed by the rule of law the executive Government or any of its officers should possess arbitrary power over the interests of the individual. Every action of the executive Government must be informed with reason and should be free from arbitrariness. That is the very essence of the rule of law and its bare minimal requirement. And to the application of this principle it makes no difference whether the exercise of the power involves affectation of some right or denial of some privilege.’ 36. Applying this principle to the present appeals, other bidders and those who had not bid could very well contend that if they had known that the prescribed format of the bank guarantee was not mandatory or that some other term(s) of NIT or GTC were not mandatory for compliance, they too would have meaningfully participated in the bidding process. In other words, by rearranging the goalposts, they were denied the “privilege” of participation. 37. For JVC to say that its bank guarantee was in terms stricter than the prescribed format is neither here nor there. It is not for the employer or this Court to scrutinise every bank guarantee to determine whether it is stricter than the prescribed format or less rigorous. The fact is that a format was prescribed and there was no reason not to adhere to it. The goalposts cannot be rearranged or asked to be rearranged during the bidding process to affect the right of some or deny a privilege to some. 38. The fact is that a format was prescribed and there was no reason not to adhere to it. The goalposts cannot be rearranged or asked to be rearranged during the bidding process to affect the right of some or deny a privilege to some. 38. In G.J. Fernandez v. State of Karnataka [G.J. Fernandez v. State of Karnataka, (1990) 2 SCC 488 ] , both the principles laid down in Ramana Dayaram Shetty [Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489 ] were reaffirmed. It was reaffirmed that the party issuing the tender (the employer) “has the right to punctiliously and rigidly” enforce the terms of the tender. If a party approaches a court for an order restraining the employer from strict enforcement of the terms of the tender, the court would decline to do so. It was also reaffirmed that the employer could deviate from the terms and conditions of the tender if the “changes affected all intending applicants alike and were not objectionable”. Therefore, deviation from the terms and conditions is permissible so long as the level playing field is maintained and it does not result in any arbitrariness or discrimination in Ramana Dayaram Shetty [Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489 ] sense. *** 42. Unfortunately, this Court in Poddar Steel Corpn. v. Ganesh Engg. Works [Poddar Steel Corpn. v. Ganesh Engg. Works, (1991) 3 SCC 273 ] did not at all advert to the privilege-of-participation principle laid down in Ramana Dayaram Shetty [Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489 ] and accepted in G.J. Fernandez [G.J. Fernandez v. State of Karnataka, (1990) 2 SCC 488 ] . In other words, this Court did not consider whether, as a result of the deviation, others could also have become eligible to participate in the bidding process. This principle was ignored in Poddar Steel [Poddar Steel Corpn. v. Ganesh Engg. Works, (1991) 3 SCC 273 ] . 43. Continuing in the vein of accepting the inherent authority of an employer to deviate from the terms and conditions of an NIT, and reintroducing the privilege-of-participation principle and the level playing field concept, this Court laid emphasis on the decision-making process, particularly in respect of a commercial contract. v. Ganesh Engg. Works, (1991) 3 SCC 273 ] . 43. Continuing in the vein of accepting the inherent authority of an employer to deviate from the terms and conditions of an NIT, and reintroducing the privilege-of-participation principle and the level playing field concept, this Court laid emphasis on the decision-making process, particularly in respect of a commercial contract. One of the more significant cases on the subject is the three-Judge decision in Tata Cellular v. Union of India [Tata Cellular v. Union of India, (1994) 6 SCC 651 ] which gave importance to the lawfulness of a decision and not its soundness. If an administrative decision, such as a deviation in the terms of NIT is not arbitrary, irrational, unreasonable, mala fide or biased, the courts will not judicially review the decision taken. Similarly, the courts will not countenance interference with the decision at the behest of an unsuccessful bidder in respect of a technical or procedural violation. This was quite clearly stated by this Court (following Tata Cellular [Tata Cellular v. Union of India, (1994) 6 SCC 651 ] ) in Jagdish Mandal v. State of Orissa [Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517 ] ] in the following words : (Jagdish Mandal case [Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517 ] , SCC p. 531, para 22) ‘22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made “lawfully” and not to check whether choice or decision is “sound”. When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold.’ This Court then laid down the questions that ought to be asked in such a situation. It was said : (Jagdish Mandal case [Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517 ] , SCC p. 531, para 22) ‘22. … 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.’ 44. On asking these questions in the present appeals, it is more than apparent that the decision taken by CCL to adhere to the terms and conditions of NIT and the GTC was certainly not irrational in any manner whatsoever or intended to favour anyone. The decision was lawful and not unsound. *** 47. The result of this discussion is that the issue of the acceptance or rejection of a bid or a bidder should be looked at not only from the point of view of the unsuccessful party but also from the point of view of the employer. As held in Ramana Dayaram Shetty [Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489 ] the terms of NIT cannot be ignored as being redundant or superfluous. They must be given a meaning and the necessary significance. As held in Ramana Dayaram Shetty [Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489 ] the terms of NIT cannot be ignored as being redundant or superfluous. They must be given a meaning and the necessary significance. As pointed out in Tata Cellular [Tata Cellular v. Union of India, (1994) 6 SCC 651 ] there must be judicial restraint in interfering with administrative action. Ordinarily, the soundness of the decision taken by the employer ought not to be questioned but the decision-making process can certainly be subject to judicial review. The soundness of the decision may be questioned if it is irrational or mala fide or intended to favour someone or a decision ‘that no responsible authority acting reasonably and in accordance with relevant law could have reached’ as held in Jagdish Mandal [Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517 ] followed in Michigan Rubber [Michigan Rubber (India) Ltd. v. State of Karnataka, (2012) 8 SCC 216 ] . 48. Therefore, whether a term of NIT is essential or not is a decision taken by the employer which should be respected. Even if the term is essential, the employer has the inherent authority to deviate from it provided the deviation is made applicable to all bidders and potential bidders as held in Ramana Dayaram Shetty [Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489 ] . However, if the term is held by the employer to be ancillary or subsidiary, even that decision should be respected. The lawfulness of that decision can be questioned on very limited grounds, as mentioned in the various decisions discussed above, but the soundness of the decision cannot be questioned, otherwise this Court would be taking over the function of the tender issuing authority, which it cannot. 49. Again, looked at from the point of view of the employer if the courts take over the decision-making function of the employer and make a distinction between essential and non-essential terms contrary to the intention of the employer and thereby rewrite the arrangement, it could lead to all sorts of problems including the one that we are grappling with. For example, the GTC that we are concerned with specifically states in Clause 15.2 that ‘Any bid not accompanied by an acceptable bid Security/EMD shall be rejected by the employer as non-responsive’. For example, the GTC that we are concerned with specifically states in Clause 15.2 that ‘Any bid not accompanied by an acceptable bid Security/EMD shall be rejected by the employer as non-responsive’. Surely, CCL ex facie intended this term to be mandatory, yet the High Court held [SLL-SML (Joint Venture Consortium) v. Central Coalfields Ltd., 2015 SCC OnLine Jhar 4819] that the bank guarantee in a format not prescribed by it ought to be accepted since that requirement was a non-essential term of the GTC. From the point of view of CCL, the GTC has been impermissibly rewritten by the High Court. *** 52. There is a wholesome principle that the courts have been following for a very long time and which was articulated in Nazir Ahmad v. King Emperor [Nazir Ahmad v. King Emperor, 1936 SCC OnLine PC 41 : AIR 1936 PC 253 (2)] , namely : (SCC OnLine PC) ‘… where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden.’ There is no valid reason to give up this salutary principle or not to apply it mutatis mutandis to bid documents. This principle deserves to be applied in contractual disputes, particularly in commercial contracts or bids leading up to commercial contracts, where there is stiff competition. It must follow from the application of the principle laid down in Nazir Ahmad [Nazir Ahmad v. King Emperor, 1936 SCC OnLine PC 41 : AIR 1936 PC 253 (2)] that if the employer prescribes a particular format of the bank guarantee to be furnished, then a bidder ought to submit the bank guarantee in that particular format only and not in any other format. However, as mentioned above, there is no inflexibility in this regard and an employer could deviate from the terms of the bid document but only within the parameters mentioned above. *** 55. On the basis of the available case law, we are of the view that since CCL had not relaxed or deviated from the requirement of furnishing a bank guarantee in the prescribed format, insofar as the present appeals are concerned every bidder was obliged to adhere to the prescribed format of the bank guarantee. *** 55. On the basis of the available case law, we are of the view that since CCL had not relaxed or deviated from the requirement of furnishing a bank guarantee in the prescribed format, insofar as the present appeals are concerned every bidder was obliged to adhere to the prescribed format of the bank guarantee. Consequently, the failure of JVC to furnish the bank guarantee in the prescribed format was sufficient reason for CCL to reject its bid. 56. There is nothing to indicate that the process by which the decision was taken by CCL that the bank guarantee furnished by JVC ought to be rejected was flawed in any manner whatsoever. Similarly, there is nothing to indicate that the decision taken by CCL to reject the bank guarantee furnished by JVC and to adhere to the requirements of NIT and the GTC was arbitrary or unreasonable or perverse in any manner whatsoever.” (emphasis in original) 28.6. In Maa Binda Express Carrier v. North-East Frontier Railway [Maa Binda Express Carrier v. North-East Frontier Railway, (2014) 3 SCC 760 ] , this Court had an occasion to consider the scope of judicial review in the matters relating to award of contracts by the State and its instrumentalities. In paras 8 to 10 this Court has observed and held as under : (SCC pp. 764-65) “8. The scope of judicial review in matters relating to award of contracts by the State and its instrumentalities is settled by a long line of decisions of this Court. While these decisions clearly recognise that power exercised by the Government and its instrumentalities in regard to allotment of contract is subject to judicial review at the instance of an aggrieved party, submission of a tender in response to a notice inviting such tenders is no more than making an offer which the State or its agencies are under no obligation to accept. The bidders participating in the tender process cannot, therefore, insist that their tenders should be accepted simply because a given tender is the highest or lowest depending upon whether the contract is for sale of public property or for execution of works on behalf of the Government. All that participating bidders are entitled to is a fair, equal and non-discriminatory treatment in the matter of evaluation of their tenders. All that participating bidders are entitled to is a fair, equal and non-discriminatory treatment in the matter of evaluation of their tenders. It is also fairly well settled that award of a contract is essentially a commercial transaction which must be determined on the basis of consideration that are relevant to such commercial decision. This implies that terms subject to which tenders are invited are not open to the judicial scrutiny unless it is found that the same have been tailor-made to benefit any particular tenderer or class of tenderers. So also, the authority inviting tenders can enter into negotiations or grant relaxation for bona fide and cogent reasons provided such relaxation is permissible under the terms governing the tender process. 9. Suffice it to say that in the matter of award of contracts the Government and its agencies have to act reasonably and fairly at all points of time. To that extent the tenderer has an enforceable right in the court which is competent to examine whether the aggrieved party has been treated unfairly or discriminated against to the detriment of public interest. (See Meerut Development Authority v. Assn. of Management Studies [Meerut Development Authority v. Assn. of Management Studies, (2009) 6 SCC 171 : (2009) 2 SCC (Civ) 803] and Air India Ltd. v. Cochin International Airport Ltd. [Air India Ltd. v. Cochin International Airport Ltd., (2000) 2 SCC 617 ] ) 10. The scope of judicial review in contractual matters was further examined by this Court in Tata Cellular v. Union of India [Tata Cellular v. Union of India, (1994) 6 SCC 651 ] , Raunaq International Ltd. case [Raunaq International Ltd. v. I.V.R. Construction Ltd., (1999) 1 SCC 492 ] and in Jagdish Mandal v. State of Orissa [Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517 ] besides several other decisions to which we need not refer.” 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. 16.28. By relying on Montecarlo Ltd.’s case, he submits that Courts ought not to permit a petitioner challenging a tender to make a mountain of a molehill on technicalities. The Court would always have to consider whether the decision making process is proper or not. The methodology of requiring a particular document to be submitted in a particular format, the requirement of minimum turnover value of the tender is all within the domain of the employers/tendering authority so also are the wording of the required documents being the Bank guarantee, performance guarantee or the like. These are aspects which the employer can fix on the basis of its own requirement taking into consideration the nature of work, the possibility of breach being committed and the manner in which the State and/or its instrumentalities need to be protected on account of breach if any by the successful tenderer which would ultimately enure to the benefit of the general public. So long as the requirements are the same for each and every bidder, one of the bidders cannot attribute discrimination and/or malafides without categorically establishing the said allegations. Merely by contending that there is a change and/or that there is a different process adopted would not suffice for this Court to interfere in tender matters unless the Petitioners were to establish that the same was malafide, arbitrary, irrational and contrary to applicable law and the Constitution. None of them having been done, he submits that this Court ought not to intercede in the present tender. 16.29. He relies upon the decision of the Hon’ble Apex Court in Silppi Constructions Contractors vs Union of India, (2020) 16 SCC 489 , 2019 INSC 696, more particularly para nos. None of them having been done, he submits that this Court ought not to intercede in the present tender. 16.29. He relies upon the decision of the Hon’ble Apex Court in Silppi Constructions Contractors vs Union of India, (2020) 16 SCC 489 , 2019 INSC 696, more particularly para nos. 1-15, 19 and 20 thereof, which have been reproduced hereunder for easy reference: 1. Keeping in view the urgency of the matter, after detailed hearing the special leave petitions were dismissed and we had directed that a reasoned order would follow. Hence the present order. 2. Respondents 1 and 2 issued notice inviting tenders for two works at Kochi. The estimated cost of the works were Rs 53 crores and Rs 72 crores respectively. The petitioner “The Silppi Constructions Contractors”, (hereinafter referred to as “the firm”) uploaded its competitive bid on the site and complied with all the conditions. The technical bids of the petitioner were rejected by the tendering authorities on 28-3-2019. The petitioner filed appeals before the appellate authority on 28-3-2019 itself which were rejected on 9-4-2019. 3. Thereafter, the petitioner filed a writ petition in the High Court of Kerala and the main ground raised was that no reasons were given either while rejecting its tender or the appeals. In the counter filed to the writ petition the stand taken by the respondents was that the petitioner's tenders were rejected since the petitioner did not satisfy the eligibility criteria for submission of the bid. It was also specifically urged that a sister concern of the petitioner's firm, namely, “M/s Silppi Realtors and Contractors Pvt. Ltd.”, (hereinafter referred to as “the sister company”), had not renewed its enlistment and had adverse remarks against it in respect of workload return of “SS” Class Contractors for the quarter ending September 2017. It was urged that since the adverse remarks had been given to the sister company the petitioner firm could not be awarded the contract. 4. The learned Single Judge allowed [Silppi Constructions & Contractors v. Union of India, 2019 SCC OnLine Ker 2830] the appeal holding that the order passed by the appellate authority was not a speaking order and, therefore, not legally sustainable. The learned Single Judge also observed that the adverse remarks made against the sister company could not be used against the petitioner. The learned Single Judge also observed that the adverse remarks made against the sister company could not be used against the petitioner. The learned Single Judge went on to hold that the remarks against the sister company were not justified. The writ petition was accordingly allowed and Respondents 1 and 2 were directed to consider the financial bid of the petitioner. 5. Respondents 1 and 2 and some of the tenderers who were not parties before the learned Single Judge filed writ appeals. These writ appeals were allowed [Pushkarraj Constructions (P) Ltd. v. Silppi Constructions & Contractors, 2019 SCC OnLine Ker 1932 : (2019) 3 KLJ 353 ] by the Division Bench holding firstly, that the scope of interference in contractual matters is very limited; secondly, that the learned Single Judge ought not to have interfered with the decision of the administrative authorities with regard to the sister company since it was not shown that the said decision was mala fide; thirdly, since the sister company had not challenged the adverse remark the learned Single Judge could not have set aside the same in the writ petition filed by the petitioner firm; and lastly, the direction of the learned Single Judge to direct the tendering authorities to consider the financial bid of the petitioner virtually meant that the technical bid of the petitioner was accepted. 6. Aggrieved, the original writ petitioner is before us in these petitions. This Court in a catena of judgments has laid down the principles with regard to judicial review in contractual matters. It is settled law that the writ courts should not easily interfere in commercial activities just because public sector undertakings or government agencies are involved. 7. In Tata Cellular v. Union of India [Tata Cellular v. Union of India, (1994) 6 SCC 651 ], it was held that judicial review of government contracts was permissible in order to prevent arbitrariness or favouritism. The principles enunciated in this case are: (SCC pp. 687-88, para 94) “94. … (1) The modern trend points to judicial restraint in administrative action. (2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made. (3) The court does not have the expertise to correct the administrative decision. The principles enunciated in this case are: (SCC pp. 687-88, para 94) “94. … (1) The modern trend points to judicial restraint in administrative action. (2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made. (3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible. (4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts. (5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides. (6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure.” (emphasis in original) 8. In Raunaq International Ltd. v. I.V.R. Construction Ltd. [Raunaq International Ltd. v. I.V.R. Construction Ltd., (1999) 1 SCC 492 ], this Court held that the superior courts should not interfere in matters of tenders unless substantial public interest was involved or the transaction was mala fide. 9. In Air India Ltd. v. Cochin International Airport Ltd. [Air India Ltd. v. Cochin International Airport Ltd., (2000) 2 SCC 617 ], this Court once again stressed the need for overwhelming public interest to justify judicial intervention in contracts involving the State and its instrumentalities. It was held that the courts must proceed with great caution while exercising their discretionary powers and should exercise these powers only in furtherance of public interest and not merely on making out a legal point. 10. It was held that the courts must proceed with great caution while exercising their discretionary powers and should exercise these powers only in furtherance of public interest and not merely on making out a legal point. 10. In Karnataka Siidc Ltd. v. Cavalet (India) Ltd. [Karnataka Siidc Ltd. v. Cavalet (India) Ltd., (2005) 4 SCC 456 ] it was held that while effective steps must be taken to realise the maximum amount, the High Court exercising its power under Article 226 of the Constitution is not competent to decide the correctness of the sale effected by the Corporation. 11. In Master Marine Services (P) Ltd. v. Metcalfe & Hodgkinson (P) Ltd. [Master Marine Services (P) Ltd. v. Metcalfe & Hodgkinson (P) Ltd., (2005) 6 SCC 138 ] it was held that while exercising power of judicial review in respect of contracts, the court should concern itself primarily with the question, whether there has been any infirmity in the decision-making process. By way of judicial review, the court cannot examine details of terms of contract which have been entered into by public bodies or the State. 12. In B.S.N. Joshi & Sons Ltd. v. Nair Coal Services Ltd. [B.S.N. Joshi & Sons Ltd. v. Nair Coal Services Ltd., (2006) 11 SCC 548 ] it was held that it is not always necessary that a contract be awarded to the lowest tenderer and it must be kept in mind that the employer is the best judge therefor; the same ordinarily being within its domain. Therefore, the court's interference in such matters should be minimal. The High Court's jurisdiction in such matters being limited, the Court should normally exercise judicial restraint unless illegality or arbitrariness on the part of the employer is apparent on the face of the record. 13. In Jagdish Mandal v. State of Orissa [Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517 ] it was held: (SCC p. 531, para 22) “22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made “lawfully” and not to check whether choice or decision is “sound”. When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Its purpose is to check whether choice or decision is made “lawfully” and not to check whether choice or decision is “sound”. When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold.” 14. In Michigan Rubber (India) Ltd. v. State of Karnataka [Michigan Rubber (India) Ltd. v. State of Karnataka, (2012) 8 SCC 216 ] it was held that if the State or its instrumentalities acted reasonably, fairly and in public interest in awarding contract, interference by court would be very restrictive since no person could claim fundamental right to carry on business with the Government. Therefore, the courts would not normally interfere in policy decisions and in matters challenging award of contract by the State or public authorities. 15. In Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd. [Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd., (2016) 16 SCC 818 ] it was held that a mere disagreement with the decision-making process or the decision of the administrative authority is no reason for a constitutional court to interfere. The threshold of mala fides, intention to favour someone or arbitrariness, irrationality or perversity must be met before the constitutional court interferes with the decision-making process or the decision. The threshold of mala fides, intention to favour someone or arbitrariness, irrationality or perversity must be met before the constitutional court interferes with the decision-making process or the decision. The owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional courts but that by itself is not a reason for interfering with the interpretation given. 19. This Court being the guardian of fundamental rights is duty-bound to interfere when there is arbitrariness, irrationality, mala fides and bias. However, this Court in all the aforesaid decisions has cautioned time and again that courts should exercise a lot of restraint while exercising their powers of judicial review in contractual or commercial matters. This Court is normally loathe to interfere in contractual matters unless a 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. As laid down in the judgments cited above the courts should not use a magnifying glass while scanning the tenders and make every small mistake appear like a big blunder. In fact, the courts must give “fair play in the joints” to the government and public sector undertakings in matters of contract. Courts must also not interfere where such interference will cause unnecessary loss to the public exchequer. 20. In fact, the courts must give “fair play in the joints” to the government and public sector undertakings in matters of contract. Courts must also not interfere where such interference will cause unnecessary loss to the public exchequer. 20. The essence of the law laid down in the judgments referred to above is the exercise of restraint and caution; the need for overwhelming public interest to justify judicial intervention in matters of contract involving the State instrumentalities; the courts should give way to the opinion of the experts unless the decision is totally arbitrary or unreasonable; the court does not sit like a court of appeal over the appropriate authority; the court must realise that the authority floating the tender is the best judge of its requirements and, therefore, the court's interference should be minimal. The authority which floats the contract or tender, and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two interpretations are possible then the interpretation of the author must be accepted. The courts will only interfere to prevent arbitrariness, irrationality, bias, mala fides or perversity. With this approach in mind we shall deal with the present case. 16.30. By relying on Silppi Constructions case, he submits that Writ Court should not easily interfere in commercial activities just because public sector undertakings or government agencies are involved. Unless substantial public interest was involved or the transaction was malafide. The High Court exercising powers under Article 226/227 of the Constitution is not competent to decide the technical issues in a tender matter. These are best to be left to the employer who has formulated the tender to choose and apply such conditions as the employer believes required in a particular matter. A contract being a commercial transaction, evaluating of tenders and awarding contracts is also an essential commercial function. So long as such evaluation and awardal is in public interest, Courts ought not to by exercise of judicial review interfere in the matter. He submits that merely because the petitioners do not satisfy their technical and qualification requirements, they cannot be permitted to seek redressal of their imaginary grievances or business rivalries by making mountains out of molehills of some technical or procedural violations or on account of certain alleged prejudice caused to them. He submits that merely because the petitioners do not satisfy their technical and qualification requirements, they cannot be permitted to seek redressal of their imaginary grievances or business rivalries by making mountains out of molehills of some technical or procedural violations or on account of certain alleged prejudice caused to them. His submission is that neither the petitioners can nor the Court ought to use a magnifying glass while scanning the tenders and make every small mistake appear to be a big blunder. The State and its instrumentalities are to be given fair play in the joints to implement the executive necessities. The State in the present matter having faced brick bats and adverse comments as regards the manner in which food grains are supplied to schools as also relating to the quality thereof has now come up with a new methodology which cannot therefore be questioned only on the ground of change in methodology. 16.31. He relies upon the decision of the Hon’ble Apex Court in Afcons Infrastructure Ltd. vs Nagpur Metro Rail Corporation Ltd. & Anr., (2016) 16 SCC 818 , 2016 INSC 874, more particularly para nos. 11, 12, 13, 14 and 15 thereof, which have been reproduced hereunder for easy reference: 11. Recently, in Central Coalfields Ltd. v. SLL-SML (Joint Venture Consortium) [Central Coalfields Ltd. v. SLL-SML (Joint Venture Consortium), (2016) 8 SCC 622 : (2016) 4 SCC (Civ) 106 : (2016) 8 Scale 99 ] it was held by this Court, relying on a host of decisions that the decision-making process of the employer or owner of the project in accepting or rejecting the bid of a tenderer should not be interfered with. Interference is permissible only if the decision-making process is mala fide or is intended to favour someone. Similarly, the decision should not be interfered with unless the decision is so arbitrary or irrational that the Court could say that the decision is one which no responsible authority acting reasonably and in accordance with law could have reached. In other words, the decision-making process or the decision should be perverse and not merely faulty or incorrect or erroneous. No such extreme case was made out by GYTTPL JV in the High Court or before us. 12. In other words, the decision-making process or the decision should be perverse and not merely faulty or incorrect or erroneous. No such extreme case was made out by GYTTPL JV in the High Court or before us. 12. In Dwarkadas Marfatia and Sons v. Port of Bombay [Dwarkadas Marfatia and Sons v. Port of Bombay, (1989) 3 SCC 293 ] it was held that the constitutional courts are concerned with the decision-making process. Tata Cellular v. Union of India [Tata Cellular v. Union of India, (1994) 6 SCC 651 ] went a step further and held that a decision if challenged (the decision having been arrived at through a valid process), the constitutional courts can interfere if the decision is perverse. However, the constitutional courts are expected to exercise restraint in interfering with the administrative decision and ought not to substitute its view for that of the administrative authority. This was confirmed in Jagdish Mandal v. State of Orissa [Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517 ] as mentioned in Central Coalfields [Central Coalfields Ltd. v. SLL-SML (Joint Venture Consortium), (2016) 8 SCC 622 : (2016) 4 SCC (Civ) 106 : (2016) 8 Scale 99 ]. 13. In other words, a mere disagreement with the decision-making process or the decision of the administrative authority is no reason for a constitutional court to interfere. The threshold of mala fides, intention to favour someone or arbitrariness, irrationality or perversity must be met before the constitutional court interferes with the decision-making process or the decision. 14. We must reiterate the words of caution that this Court has stated right from the time when Ramana Dayaram Shetty v. International Airport Authority of India [Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489 ] was decided almost 40 years ago, namely, that the words used in the tender documents cannot be ignored or treated as redundant or superfluous — they must be given meaning and their necessary significance. In this context, the use of the word “metro” in Clause 4.2(a) of Section III of the bid documents and its connotation in ordinary parlance cannot be overlooked. 15. We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. In this context, the use of the word “metro” in Clause 4.2(a) of Section III of the bid documents and its connotation in ordinary parlance cannot be overlooked. 15. We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional courts but that by itself is not a reason for interfering with the interpretation given. 16.32. By relying on AFCON's infrastructure case, he reiterates that the owner or the employer of the project, having authored the tender documents, is the best person to understand and appreciate the requirements. Constitutional courts must defer to such understanding of the owner or the employer unless there is a malafide or perversity established by a person challenging such tender. In the present case, there is no malafide or perversity established by the petitioners and as such, petitions are required to be dismissed. 16.33. He relies upon the decision of the Hon’ble Apex Court in Montecarlo Ltd. vs NTPC Ltd., (2016) 15 SCC 272 , 2016 INSC 976, more particularly para nos. 19, 20, 21, 22, 23, 24 and 25 thereof, which have been reproduced hereunder for easy reference: 19. In Sterling Computers Ltd. v. M&N Publications Ltd. [Sterling Computers Ltd. v. M&N Publications Ltd., (1993) 1 SCC 445 ], the Court has held that under some special circumstances a discretion has to be conceded to the authorities who have to enter into contract giving them liberty to assess the overall situation for purpose of taking a decision as to whom the contract be awarded and at what terms. It has also been observed that by way of judicial review the Court cannot examine the details of the terms of the contract which have been entered into by the public bodies or the State. Courts have inherent limitations on the scope of any such enquiry. 20. It has also been observed that by way of judicial review the Court cannot examine the details of the terms of the contract which have been entered into by the public bodies or the State. Courts have inherent limitations on the scope of any such enquiry. 20. In Tata Cellular [Tata Cellular v. Union of India, (1994) 6 SCC 651 ] a three-Judge Bench after referring to earlier decisions culled out certain principles, namely, (a) the modern trend points to judicial restraint in administrative action, (b) the Court does not sit as a court of appeal but merely reviews the manner in which the decision was made, (c) the Court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible, and (d) the Government must have freedom of contract and that permits a fair play in the joints as a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. Hence, the Court has laid down that the decision must not only be tested by the application of the Wednesbury principle [Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., (1948) 1 KB 223 (CA)] of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides. 21. In Jagdish Mandal v. State of Orissa [Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517 ] the Court has held that : (SCC p. 531, para 22) “22. … A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out.” 22. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out.” 22. In Master Marine Services (P) Ltd. v. Metcalfe & Hodgkinson (P) Ltd. [Master Marine Services (P) Ltd. v. Metcalfe & Hodgkinson (P) Ltd., (2005) 6 SCC 138 ], it has been ruled that (SCC p. 148, para 15) the State can choose its own method to arrive at a decision and it is free to grant any relaxation for bona fide reasons, if the tender conditions permit such a relaxation. It has been further held that the State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision-making process, the Court must exercise its discretionary powers under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. 23. In B.S.N. Joshi & Sons Ltd. v. Nair Coal Services Ltd. [B.S.N. Joshi & Sons Ltd. v. Nair Coal Services Ltd., (2006) 11 SCC 548 ] a two-Judge Bench, after referring to series of judgments has culled out certain principles which include the one that where a decision has been taken purely on public interest, the Court ordinarily should apply judicial restraint. 24. In Michigan Rubber (India) Ltd. [Michigan Rubber (India) Ltd. v. State of Karnataka, (2012) 8 SCC 216 ] the Court referred to the earlier judgments and opined that before a court interferes in tender or contractual matters, in exercise of power of judicial review, it should pose to itself the question 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 judicial conscience cannot countenance. The emphasis was laid on the test, that is, whether award of contract is against public interest. 25. Recently in Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd. [Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. The emphasis was laid on the test, that is, whether award of contract is against public interest. 25. Recently in Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd. [Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd., (2016) 16 SCC 818 : (2016) 8 Scale 765 ] a two-Judge Bench eloquently exposited the test which is to the following effect: “We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional courts but that by itself is not a reason for interfering with the interpretation given.” 16.34. By relying upon Montecarlo Ltd.'s case, he submits that technical bids are prepared by technical persons which would ensure objectivity. Insofar as those technical aspects are concerned requiring technical expertise, constitutional Courts ought not to interfere subject again however that the decision made is neither arbitrary, malafide or adopted to favour any particular entity so long as there is no infirmity in the same, this Court ought not to interfere. 16.35. He relies upon the decision of the Hon’ble Apex Court in Michigan Rubber (India) Ltd. Vs State of Karnataka & Ors., (2012) 8 SCC 216 , 2012 INSC 338, more particularly para nos. 11-22, 23 and 24 thereof, which have been reproduced hereunder for easy reference: 11. In Tata Cellular v. Union of India [ (1994) 6 SCC 651 ] this Court emphasised the need to find a right balance between administrative discretion to decide the matters on the one hand, and the need to remedy any unfairness on the other, and observed: (SCC pp. 687-88, para 94) “(1) The modern trend points to judicial restraint in administrative action. (2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made. (3) The court does not have the expertise to correct the administrative decision. 687-88, para 94) “(1) The modern trend points to judicial restraint in administrative action. (2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made. (3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise, which itself may be fallible. (4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. … (5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle [Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., (1948) 1 KB 223 : (1947) 2 All ER 680 (CA)] of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides. (6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure.” (emphasis in original) 12. In Raunaq International Ltd. v. I.V.R. Construction Ltd. [ (1999) 1 SCC 492 ] this Court reiterated the principle governing the process of judicial review and held that the writ court would not be justified in interfering with commercial transactions in which the State is one of the parties except where there is substantial public interest involved and in cases where the transaction is mala fide. 13. In Union of India v. International Trading Co. [ (2003) 5 SCC 437 ] this Court, in similar circumstances, held as under: (SCC pp. 445 & 447, paras 15-16 & 2223) “15. While the discretion to change the policy in exercise of the executive power, when not trammelled by any statute or rule is wide enough, what is imperative and implicit in terms of Article 14 is that a change in policy must be made fairly and should not give the impression that it was so done arbitrarily or by any ulterior criteria. The wide sweep of Article 14 and the requirement of every State action qualifying for its validity on this touchstone irrespective of the field of activity of the State is an accepted tenet. The basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play. Actions are amenable, in the panorama of judicial review only to the extent that the State must act validly for a discernible reason, not whimsically for any ulterior purpose. The meaning and true import and concept of arbitrariness is more easily visualised than precisely defined. A question whether the impugned action is arbitrary or not is to be ultimately answered on the facts and circumstances of a given case. A basic and obvious test to apply in such cases is to see whether there is any discernible principle emerging from the impugned action and if so, does it really satisfy the test of reasonableness. 16. Where a particular mode is prescribed for doing an act and there is no impediment in adopting the procedure, the deviation to act in a different manner which does not disclose any discernible principle which is reasonable itself shall be labelled as arbitrary. Every State action must be informed by reason and it follows that an act uninformed by reason is per se arbitrary. *** 22. If the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities and adopt trade policies. As noted above, the ultimate test is whether on the touchstone of reasonableness the policy decision comes out unscathed. 23. Reasonableness of restriction is to be determined in an objective manner and from the standpoint of interests of the general public and not from the standpoint of the interests of persons upon whom the restrictions have been imposed or upon abstract consideration. A restriction cannot be said to be unreasonable merely because in a given case, it operates harshly. In determining whether there is any unfairness involved; the nature of the right alleged to have been infringed, the underlying purpose of the restriction imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing condition at the relevant time, enter into judicial verdict. In determining whether there is any unfairness involved; the nature of the right alleged to have been infringed, the underlying purpose of the restriction imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing condition at the relevant time, enter into judicial verdict. The reasonableness of the legitimate expectation has to be determined with respect to the circumstances relating to the trade or business in question. Canalisation of a particular business in favour of even a specified individual is reasonable where the interests of the country are concerned or where the business affects the economy of the country. (See Parbhani Transport Coop. Society Ltd. v. RTA [ AIR 1960 SC 801 ], Shree Meenakshi Mills Ltd. v. Union of India [ (1974) 1 SCC 468 ], Hari Chand Sarda v. Mizo District Council [ AIR 1967 SC 829 ] and Krishnan Kakkanth v. Govt. of Kerala [ (1997) 9 SCC 495 ].)” 14. In Jespar I. Slong v. State of Meghalaya [ (2004) 11 SCC 485 ] this Court, in para 17, held as under: (SCC p. 494) “17. … fixation of a value of the tender is entirely within the purview of the executive and courts hardly have any role to play in this process except for striking down such action of the executive as is proved to be arbitrary or unreasonable.” 15. In Assn. of Registration Plates v. Union of India [ (2005) 1 SCC 679 ] a similar issue was considered by a Bench of three Judges. In that case, the dispute was about the terms and conditions of notices inviting tenders (NITs) for supply of high security registration plates for motor vehicles. The tenders had been issued by various State Governments on the guidelines circulated by the Central Government for implementing the provisions of the Motor Vehicles Act, 1988 and the newly amended Central Motor Vehicles Rules, 1989. The main grievance of the appellant therein was that all notices inviting tenders (NITs) which were issued by various State Governments, contained conditions which were tailored to favour companies having foreign collaboration. Their further grievance was that the tender conditions were discriminatory as per Article 14 of the Constitution and were being aimed at excluding indigenous manufacturers from the tender process. Their further grievance was that the tender conditions were discriminatory as per Article 14 of the Constitution and were being aimed at excluding indigenous manufacturers from the tender process. It was also contended that in all the cases, the work of supply of high security registration plates for all existing vehicles and new vehicles was being entrusted to a single licence plates manufacturer in a State or a region and for a long period of 15 years, thus creating monopoly in favour of selected bidders to the complete exclusion of all others in the field. 16. The further contention advanced in Assn. of Registration Plates case [ (2005) 1 SCC 679 ] was that creation of monopoly in favour of a few parties having connection with foreign concerns is violative of the fundamental right of trade under Article 19(1)(g) and discriminatory under Article 14 of the Constitution. It was also pointed out that in the name of implementing the amended Rule 50 of the Motor Vehicles Rules, 1989, the States are imposing conditions in the tender that would take away the existing rights of the manufacturers of plates in India. 17. On the condition laid down for prescribed minimum turnover of business, the challenge made on behalf of the petitioners in Assn. of Registration Plates case [ (2005) 1 SCC 679 ] was that fixing such high turnover for such a new business is only for the purpose of advancing the business interests of a group of companies having foreign links and support. That it was impossible for any indigenous manufacturer of security plates to have a turnover of approximately Rs 12.5 crores from the high security registration plates which were sought to be introduced in India for the first time and the implementation of the project has not yet started in any of the States. 18. On behalf of the Union of India, the State authorities and the counsel appearing for the contesting manufacturers, in their replies, have tried to justify the manner and implementation of the policy contained in Rule 50 of the Motor Vehicles Rules. 18. On behalf of the Union of India, the State authorities and the counsel appearing for the contesting manufacturers, in their replies, have tried to justify the manner and implementation of the policy contained in Rule 50 of the Motor Vehicles Rules. On behalf of the Union of India, the learned ASG submitted that under Rule 50 read with the Statutory Order of 2001 issued under Section 109(3) of the Motor Vehicles Act, the State Governments are legally competent to formulate an appropriate policy for choosing a sole or more manufacturers in order to fulfil the object of affixation of security plates. The Scheme contained in Rule 50 read with the Statutory Order of 2001 leaves it to the discretion of the State concerned to even choose a single manufacturer for the entire State or more than one manufacturer regionwise. It was pointed out that such a selection cannot be said to confer any monopoly right by the State on any private individual or concern. He further pointed out that the tender conditions were formulated taking into account the public interest consideration and aspects of high security. 19. While considering the above submissions, the three-Judge Bench held as under: (Assn. of Registration Plates case [ (2005) 1 SCC 679 ], SCC pp. 698-701, paras 3840 & 43-44) “38. In the matter of formulating conditions of a tender document and awarding a contract of the nature of ensuring supply of high security registration plates, greater latitude is required to be conceded to the State authorities. Unless the action of tendering authority is found to be malicious and a misuse of its statutory powers, tender conditions are unassailable. On intensive examination of tender conditions, we do not find that they violate the equality clause under Article 14 or encroach on fundamental rights of the class of intending tenderers under Article 19 of the Constitution. On the basis of the submissions made on behalf of the Union and the State authorities and the justification shown for the terms of the impugned tender conditions, we do not find that the clauses requiring experience in the field of supplying registration plates in foreign countries and the quantum of business turnover are intended only to keep indigenous manufacturers out of the field. It is explained that on the date of formulation of scheme in Rule 50 and issuance of guidelines thereunder by the Central Government, there were not many indigenous manufacturers in India with technical and financial capability to undertake the job of supply of such high dimension, on a long-term basis and in a manner to ensure safety and security which is the prime object to be achieved by the introduction of new sophisticated registration plates. 39. The notice inviting tender is open to response by all and even if one single manufacturer is ultimately selected for a region or State, it cannot be said that the State has created a monopoly of business in favour of a private party. Rule 50 permits the RTOs concerned themselves to implement the policy or to get it implemented through a selected approved manufacturer. 40. Selecting one manufacturer through a process of open competition is not creation of any monopoly, as contended, in violation of Article 19(1)(g) of the Constitution read with clause (6) of the said article. As is sought to be pointed out, the implementation involves large network of operations of highly sophisticated materials. The manufacturer has to have embossing stations within the premises of the RTO. He has to maintain the data of each plate which he would be getting from his main unit. It has to be cross-checked by the RTO data. There has to be a server in the RTO's office which is linked with all RTOs in each State and thereon linked to the whole nation. Maintenance of the record by one and supervision over its activity would be simpler for the State if there is one manufacturer instead of multi-manufacturers as suppliers. The actual operation of the scheme through the RTOs in their premises would get complicated and confused if multi-manufacturers are involved. That would also seriously impair the high security concept in affixation of new plates on the vehicles. If there is a single manufacturer he can be forced to go and serve rural areas with thin vehicular population and less volume of business. Multi-manufacturers might concentrate only on urban areas with higher vehicular population. *** 43. Certain preconditions or qualifications for tenders have to be laid down to ensure that the contractor has the capacity and the resources to successfully execute the work. Multi-manufacturers might concentrate only on urban areas with higher vehicular population. *** 43. Certain preconditions or qualifications for tenders have to be laid down to ensure that the contractor has the capacity and the resources to successfully execute the work. Article 14 of the Constitution prohibits the Government from arbitrarily choosing a contractor at its will and pleasure. It has to act reasonably, fairly and in public interest in awarding contract. At the same time, no person can claim a fundamental right to carry on business with the Government. All that he can claim is that in competing for the contract, he should not be unfairly treated and discriminated, to the detriment of public interest. Undisputedly, the legal position which has been firmly established from various decisions of this Court, cited at the Bar [Ed.: Reference may be made to the decisions in Air India Ltd. v. Cochin International Airport Ltd., (2000) 2 SCC 617 ; Asia Foundation & Construction Ltd. v. Trafalgar House Construction (I) Ltd., (1997) 1 SCC 738 ; Krishnan Kakkanth v. Govt. of Kerala, (1997) 9 SCC 495 ; Ugar Sugar Works Ltd. v. Delhi Admn., (2001) 3 SCC 635 ; Sterling Computers Ltd. v. M&N Publications Ltd., (1993) 1 SCC 445 ; Union of India v. Dinesh Engg. Corpn., (2001) 8 SCC 491 .] is that government contracts are highly valuable assets and the court should be prepared to enforce standards of fairness on the Government in its dealings with tenderers and contractors. 44. The grievance that the terms of notice inviting tenders in the present case virtually create a monopoly in favour of parties having foreign collaborations, is without substance. Selection of a competent contractor for assigning job of supply of a sophisticated article through an open-tender procedure, is not an act of creating monopoly, as is sought to be suggested on behalf of the petitioners. What has been argued is that the terms of the notices inviting tenders deliberately exclude domestic manufacturers and new entrepreneurs in the field. In the absence of any indication from the record that the terms and conditions were tailor-made to promote parties with foreign collaborations and to exclude indigenous manufacturers, judicial interference is uncalled for.” After observing so, this Court dismissed all the writ petitions directly filed in this Court and transferred to this Court from the High Courts. 20. In the absence of any indication from the record that the terms and conditions were tailor-made to promote parties with foreign collaborations and to exclude indigenous manufacturers, judicial interference is uncalled for.” After observing so, this Court dismissed all the writ petitions directly filed in this Court and transferred to this Court from the High Courts. 20. In Reliance Airport Developers (P) Ltd. v. Airports Authority of India [ (2006) 10 SCC 1 ] this Court held that while judicial review cannot be denied in contractual matters or matters in which the Government exercises its contractual powers, such review is intended to prevent arbitrariness and must be exercised in larger public interest. 21. In Jagdish Mandal v. State of Orissa [ (2007) 14 SCC 517 ] the following conclusion is relevant: (SCC pp. 531-32, para 22) “22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made ‘lawfully’ and not to check whether choice or decision is ‘sound’. When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. 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. 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. Cases involving blacklisting or imposition of penal consequences on a tenderer/contractor or distribution of State largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action.” 22. The same principles have been reiterated in a recent decision of this Court in Tejas Constructions & Infrastructure (P) Ltd. v. Municipal Council, Sendhwa [ (2012) 6 SCC 464 ]. 23. From the above decisions, the following principles emerge: (a) The basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play. These actions are amenable to the judicial review only to the extent that the State must act validly for a discernible reason and not whimsically for any ulterior purpose. If the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities; (b) Fixation of a value of the tender is entirely within the purview of the executive and the courts hardly have any role to play in this process except for striking down such action of the executive as is proved to be arbitrary or unreasonable. If the Government acts in conformity with certain healthy standards and norms such as awarding of contracts by inviting tenders, in those circumstances, the interference by courts is very limited; (c) In the matter of formulating conditions of a tender document and awarding a contract, greater latitude is required to be conceded to the State authorities unless the action of the tendering authority is found to be malicious and a misuse of its statutory powers, interference by courts is not warranted; (d) Certain preconditions or qualifications for tenders have to be laid down to ensure that the contractor has the capacity and the resources to successfully execute the work; and (e) If the State or its instrumentalities act reasonably, fairly and in public interest in awarding contract, here again, interference by court is very restrictive since no person can claim a fundamental right to carry on business with the Government. 24. 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”? 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. 16.36. By relying on the decision in the Michigan Rubber Ltd.’s case, he submits that fixation of value of the tender is entirely within the purview of the executive. Formulation of condition of a tender document and awarding a contract is also within the purview of the State authorities unless the fixation of value is indicated to be arbitrary or unreasonable and the conditions formulated are found to be malicious and a misuse of statutory powers, the Courts ought not to interfere. 16.37. He relies upon the decision of the Hon’ble Apex Court in B.S.N. Joshi & Sons Ltd. vs Nair Coal Services Ltd & Ors., (2006) 11 SCC 548 , 2006 INSC 750, more particularly para nos. 58-64, 65 and 66 thereof, which have been reproduced hereunder for easy reference: 58. 16.37. He relies upon the decision of the Hon’ble Apex Court in B.S.N. Joshi & Sons Ltd. vs Nair Coal Services Ltd & Ors., (2006) 11 SCC 548 , 2006 INSC 750, more particularly para nos. 58-64, 65 and 66 thereof, which have been reproduced hereunder for easy reference: 58. In Jagdish Swarup's Constitution of India, 2nd Edn., p. 286, it is stated: “It is equally true that even in contractual matters, a public authority does not have an unfettered decision to ignore the norms recognised by the courts, but at the same time if a decision has been taken by a public authority in a bona fide manner, although not strictly following the norms laid down by the courts, such decision is upheld on the principle that the courts, while judging the constitutional validity of executing decisions, must grant a certain measure of freedom of ‘play in the joints’ to the executive.” 59. Recently, in Master Marine Services (P) Ltd. v. Metcalfe & Hodgkinson (P) Ltd. [ (2005) 6 SCC 138 ], upon noticing a large number of decisions, this Court stated: (SCC p. 148, para 15) “15. The law relating to award of contract by the State and public sector corporations was reviewed in Air India Ltd. v. Cochin International Airport Ltd. [ (2000) 2 SCC 617 ] and it was held that the award of a contract, whether by a private party or by a State, is essentially a commercial transaction. It can choose its own method to arrive at a decision and it is free to grant any relaxation for bona fide reasons, if the tender conditions permit such a relaxation. It was further held that the State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision-making process, the court must exercise its discretionary powers under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. The court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the court should interfere.” (See also Noble Resources Ltd. v. State of Orissa [ (2006) 10 SCC 236 : (2006) 9 Scale 181 ].) 60. Strong reliance has been placed by Mr Tankha on G.J. Fernandez v. State of Karnataka [ (1990) 2 SCC 488 ] wherein this Court observed: (SCC p. 501, para 15) “15. Thirdly, the conditions and stipulations in a tender notice like this have two types of consequences. The first is that the party issuing the tender has the right to punctiliously and rigidly enforce them. Thus, if a party does not strictly comply with the requirements of para III, V or VI of the NIT, it is open to the KPC to decline to consider the party for the contract and if a party comes to court saying that the KPC should be stopped from doing so, the court will decline relief. The second consequence, indicated by this Court in earlier decisions, is not that the KPC cannot deviate from these guidelines at all in any situation but that any deviation, if made, should not result in arbitrariness or discrimination. It comes in for application where the non-conformity with, or relaxation from, the prescribed standards results in some substantial prejudice or injustice to any of the parties involved or to public interest in general. For example, in this very case, the KPC made some changes in the time-frame originally prescribed. These changes affected all intending applicants alike and were not objectionable. In the same way, changes or relaxations in other directions would be unobjectionable unless the benefit of those changes or relaxations were extended to some but denied to others. The fact that a document was belatedly entertained from one of the applicants will cause substantial prejudice to another party who wanted, likewise, an extension of time for filing a similar certificate or document but was declined the benefit. The fact that a document was belatedly entertained from one of the applicants will cause substantial prejudice to another party who wanted, likewise, an extension of time for filing a similar certificate or document but was declined the benefit. It may perhaps be said to cause prejudice also to a party which can show that it had refrained from applying for the tender documents only because it thought it would not be able to produce the document by the time stipulated but would have applied had it known that the rule was likely to be relaxed.”(emphasis supplied) No such case of prejudice was made out by the respondent before the High Court or before us. 61. Law on the similar term has been laid down in Poddar Steel Corpn. v. Ganesh Engg. Works [ (1991) 3 SCC 273 ] in the following terms: (SCC p. 276, para 6) “6. It is true that in submitting its tender accompanied by a cheque of the Union Bank of India and not of the State Bank clause 6 of the tender notice was not obeyed literally, but the question is as to whether the said noncompliance deprived the Diesel Locomotive Works of the authority to accept the bid. As a matter of general proposition it cannot be held that an authority inviting tenders is bound to give effect to every term mentioned in the notice in meticulous detail, and is not entitled to waive even a technical irregularity of little or no significance. The requirements in a tender notice can be classified into two categories — those which lay down the essential conditions of eligibility and the others which are merely ancillary or subsidiary with the main object to be achieved by the condition. In the first case the authority issuing the tender may be required to enforce them rigidly. In the other cases it must be open to the authority to deviate from and not to insist upon the strict literal compliance with the condition in appropriate cases.” 62. In Indian Rly. Construction Co. Ltd. v. Ajay Kumar [ (2003) 4 SCC 579 : 2003 SCC (L&S) 528] this Court explained as to what would amount to bad faith and non-application of mind in regard to exercise of power on the part of the employer. In Indian Rly. Construction Co. Ltd. v. Ajay Kumar [ (2003) 4 SCC 579 : 2003 SCC (L&S) 528] this Court explained as to what would amount to bad faith and non-application of mind in regard to exercise of power on the part of the employer. It further opined that the burden would be on the person who seeks to invalidate or nullify the act or order to prove charge of bad faith and abuse or mistake by the authority of its power. It opined that an attempt should be made to balance the conflicting interest. 63. In Delhi Development Authority v. UEE Electricals Engg. (P) Ltd. [(2004) 11 SCC 213] the Court was considering a case where conduct of the Director of the company was found to be relevant. However, the Court opined that if the authority felt that in view of the background facts, it would be undesirable to accept the tender, the power of judicial review should not be exercised in absence of any mala fides or irrationality. 64. In State of NCT of Delhi v. Sanjeev [ (2005) 5 SCC 181 : 2005 SCC (Cri) 1025] the Court reiterated the principles of judicial review. 65. We are not oblivious of the expansive role of the superior courts in judicial review. 66. 64. In State of NCT of Delhi v. Sanjeev [ (2005) 5 SCC 181 : 2005 SCC (Cri) 1025] the Court reiterated the principles of judicial review. 65. We are not oblivious of the expansive role of the superior courts in judicial review. 66. We are also not shutting our eyes towards the new principles of judicial review which are being developed; but the law as it stands now having regard to the principles laid down in the aforementioned decisions may be summarised as under: (i) if there are essential conditions, the same must be adhered to; (ii) if there is no power of general relaxation, ordinarily the same shall not be exercised and the principle of strict compliance would be applied where it is possible for all the parties to comply with all such conditions fully; (iii) if, however, a deviation is made in relation to all the parties in regard to any of such conditions, ordinarily again a power of relaxation may be held to be existing; (iv) the parties who have taken the benefit of such relaxation should not ordinarily be allowed to take a different stand in relation to compliance with another part of tender contract, particularly when he was also not in a position to comply with all the conditions of tender fully, unless the court otherwise finds relaxation of a condition which being essential in nature could not be relaxed and thus the same was wholly illegal and without jurisdiction; (v) when a decision is taken by the appropriate authority upon due consideration of the tender document submitted by all the tenderers on their own merits and if it is ultimately found that successful bidders had in fact substantially complied with the purport and object for which essential conditions were laid down, the same may not ordinarily be interfered with; (vi) the contractors cannot form a cartel. If despite the same, their bids are considered and they are given an offer to match with the rates quoted by the lowest tenderer, public interest would be given priority; (vii) where a decision has been taken purely on public interest, the court ordinarily should exercise judicial restraint. 16.38. If despite the same, their bids are considered and they are given an offer to match with the rates quoted by the lowest tenderer, public interest would be given priority; (vii) where a decision has been taken purely on public interest, the court ordinarily should exercise judicial restraint. 16.38. By relying on B.S.N.Joshi's case, he submits that bad faith and non-application of mind in regard to excise of power on part of the employer as alleged by the petitioner would have to be established by the petitioner since the burden is on the person who seeks to make such an allegation. If the same were not to be so discharged, this Court would be required to presume that even if there is a deviation made in relation to the terms of the contract, the employer has such power of relaxation or making a deviation and so long as such relaxation or deviation is made by the employer/tendering authority in the interest of the project and/or in the interest of the public, the same ought not to be interfered with and the Constitution Courts would have to excise judicial restraint. He further submits that even this vague allegation made by the petitioner that the period of tender and/or the quantum of tender being fixed at the district level having been alleged to have been made to favour a third parties has not been established. Even inasmuch as the name of such third party has not been pointed out by the petitioners. 16.39. He relies upon the decision of the Hon’ble Apex Court in Asia Foundation & Constructions Ltd vs Trafalgar House Constructions (I) Ltd. & Ors., (1997) 1 SCC 738 , 1996 INSC 1497, more particularly para no. 9 thereof, which has been reproduced hereunder for easy reference: 9. The Asian Development Bank came into existence under an Act called the Asian Development Act, 1966, in pursuance of an international agreement to which India was a signatory. This new financial institution was established for accelerating the economic development of Asia and the Far East. Under the Act the Bank and its officers have been granted certain immunities, exemption and privileges. It is well known that it is difficult for the country to go ahead with such high cost projects unless the financial institutions like the World Bank or the Asian Development Bank grant loan or subsidy, as the case may be. Under the Act the Bank and its officers have been granted certain immunities, exemption and privileges. It is well known that it is difficult for the country to go ahead with such high cost projects unless the financial institutions like the World Bank or the Asian Development Bank grant loan or subsidy, as the case may be. When such financial institutions grant such huge loans they always insist that any project for which loan has been sanctioned must be carried out in accordance with the specification and within the scheduled time and the procedure for granting the award must be duly adhered to. In the aforesaid premises on getting the evaluation bids of the appellant and Respondent 1 together with the consultant's opinion after the so-called corrections made the conclusion of the Bank to the effect “the lowest evaluated substantially responsive bidder is consequently AFCONS” cannot be said to be either arbitrary or capricious or illegal requiring Court's interference in the matter of an award of contract. There was some dispute between the Bank on one hand and the consultant who was called upon to evaluate on the other on the question whether there is any power of making any correction to the bid documents after a specified period. The High Court in construing certain clauses of the bid documents has come to the conclusion that such a correction was permissible and, therefore, the Bank could not have insisted upon granting the contract in favour of the appellant. We are of the considered opinion that it was not within the permissible limits of interference for a court of law, particularly when there has been no allegation of malice or ulterior motive and particularly when the court has not found any mala fides or favouritism in the grant of contract in favour of the appellant. In Tata Cellular v. Union of India [ (1994) 6 SCC 651 ] this Court has held that: “The duty of the court is to confine itself to the question of legality. Its concern should be: 1. Whether a decision-making authority exceeded its powers, 2. committed an error of law, 3. committed a breach of the rules of natural justice, 4. reached a decision which no reasonable tribunal would have reached or, 5. abused its powers. Its concern should be: 1. Whether a decision-making authority exceeded its powers, 2. committed an error of law, 3. committed a breach of the rules of natural justice, 4. reached a decision which no reasonable tribunal would have reached or, 5. abused its powers. Therefore, it is not for the Court to determine whether a particular policy or particular decision taken in the fulfilment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under: (i) Illegality: This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it; (ii) Irrationality, namely, Wednesbury unreasonableness. (iii) Procedural impropriety. The above are only the broad grounds but it does not rule out addition of further grounds in course of time.” 16.40. By relying on Trafalgar House Constructions’s case, he submits that it is not permissible for the Court to hold that some corrections have to be made in a contract when in fact there is no allegation of malice or ulterior motive and/or when the Court has not found any malafide or favouritism in the grant of contract in favour of the successful tenderer. 16.41. He relies upon the decision of the Hon’ble Apex Court in Tata Cellular vs Union of India, (1994) 6 SCC 651 , 1994 INSC 283, more particularly para nos. 70-92, 93 and 94 thereof, which have been reproduced hereunder for easy reference: 70. It cannot be denied that the principles of judicial review would apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favouritism. However, it must be clearly stated that there are inherent limitations in exercise of that power of judicial review. Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State. The right to refuse the lowest or any other tender is always available to the Government. But, the principles laid down in Article 14 of the Constitution have to be kept in view while accepting or refusing a tender. Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State. The right to refuse the lowest or any other tender is always available to the Government. But, the principles laid down in Article 14 of the Constitution have to be kept in view while accepting or refusing a tender. There can be no question of infringement of Article 14 if the Government tries to get the best person or the best quotation. The right to choose cannot be considered to be an arbitrary power. Of course, if the said power is exercised for any collateral purpose the exercise of that power will be struck down. 71. Judicial quest in administrative matters has been to find the right balance between the administrative discretion to decide matters whether contractual or political in nature or issues of social policy; thus they are not essentially justiciable and the need to remedy any unfairness. Such an unfairness is set right by judicial review. 72. Lord Scarman in Nottinghamshire County Council v. Secretary of State for the Environment [ 1986 AC 240 , 251 : (1986) 1 All ER 199] proclaimed: “‘Judicial review’ is a great weapon in the hands of the judges; but the judges must observe the constitutional limits set by our parliamentary system upon the exercise of this beneficial power.” Commenting upon this Michael Supperstone and James Goudie in their work Judicial Review (1992 Edn.) at p. 16 say: “If anyone were prompted to dismiss this sage warning as a mere obiter dictum from the most radical member of the higher judiciary of recent times, and therefore to be treated as an idiosyncratic aberration, it has received the endorsement of the Law Lords generally. The words of Lord Scarman were echoed by Lord Bridge of Harwich, speaking on behalf of the Board when reversing an interventionist decision of the New Zealand Court of Appeal in Butcher v. Petrocorp Exploration Ltd. 18-3-1991.” 73. Observance of judicial restraint is currently the mood in England. The judicial power of review is exercised to rein in any unbridled executive functioning. The restraint has two contemporary manifestations. One is the ambit of judicial intervention; the other covers the scope of the court's ability to quash an administrative decision on its merits. These restraints bear the hallmarks of judicial control over administrative action. 74. The judicial power of review is exercised to rein in any unbridled executive functioning. The restraint has two contemporary manifestations. One is the ambit of judicial intervention; the other covers the scope of the court's ability to quash an administrative decision on its merits. These restraints bear the hallmarks of judicial control over administrative action. 74. Judicial review is concerned with reviewing not the merits of the decision in support of which the application for judicial review is made, but the decision-making process itself. 75. In Chief Constable of the North Wales Police v. Evans [(1982) 3 All ER 141, 154] Lord Brightman said: “Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made. *** Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power.” In the same case Lord Hailsham commented on the purpose of the remedy by way of judicial review under RSC, Ord. 53 in the following terms: “This remedy, vastly increased in extent, and rendered, over a long period in recent years, of infinitely more convenient access than that provided by the old prerogative writs and actions for a declaration, is intended to protect the individual against the abuse of power by a wide range of authorities, judicial, quasi-judicial, and, as would originally have been thought when I first practised at the Bar, administrative. It is not intended to take away from those authorities the powers and discretions properly vested in them by law and to substitute the courts as the bodies making the decisions. It is intended to see that the relevant authorities use their powers in a proper manner (p. 1160).” In R. v. Panel on Take-overs and Mergers, ex p Datafin plc [(1987) 1 All ER 564], Sir John Donaldson, M.R. commented: “An application for judicial review is not an appeal.” In Lonrho plc v. Secretary of State for Trade and Industry [(1989) 2 All ER 609], Lord Keith said: “Judicial review is a protection and not a weapon.” It is thus different from an appeal. When hearing an appeal the Court is concerned with the merits of the decision under appeal. When hearing an appeal the Court is concerned with the merits of the decision under appeal. In Amin, Re [Amin v. Entry Clearance Officer, (1983) 2 All ER 864], Lord Fraser observed that: “Judicial review is concerned not with the merits of a decision but with the manner in which the decision was made…. Judicial review is entirely different from an ordinary appeal. It is made effective by the court quashing the administrative decision without substituting its own decision, and is to be contrasted with an appeal where the appellate tribunal substitutes its own decision on the merits for that of the administrative officer.” 76. In R. v. Panel on Take-overs and Mergers, ex p in Guinness plc [ (1990) 1 QB 146 : (1989) 1 All ER 509], Lord Donaldson, M.R. referred to the judicial review jurisdiction as being supervisory or ‘longstop’ jurisdiction. Unless that restriction on the power of the court is observed, the court will, under the guise of preventing the abuse of power, be itself guilty of usurping power. 77. The duty of the court is to confine itself to the question of legality. Its concern should be: 1. Whether a decision-making authority exceeded its powers? 2. Committed an error of law, 3. committed a breach of the rules of natural justice, 4. reached a decision which no reasonable tribunal would have reached or, 5. abused its powers. Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfilment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under: (i) Illegality : This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. (ii) Irrationality, namely, Wednesbury unreasonableness. (iii) Procedural impropriety. The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact, in R. v. Secretary of State for the Home Department, ex Brind [(1991) 1 AC 696], Lord Diplock refers specifically to one development, namely, the possible recognition of the principle of proportionality. The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact, in R. v. Secretary of State for the Home Department, ex Brind [(1991) 1 AC 696], Lord Diplock refers specifically to one development, namely, the possible recognition of the principle of proportionality. In all these cases the test to be adopted is that the court should, “consider whether something has gone wrong of a nature and degree which requires its intervention”. 78. What is this charming principle of Wednesbury unreasonableness? Is it a magical formula? In R. v. Askew [(1768) 4 Burr 2186 : 98 ER 139], Lord Mansfield considered the question whether mandamus should be granted against the College of Physicians. He expressed the relevant principles in two eloquent sentences. They gained greater value two centuries later: “It is true, that the judgment and discretion of determining upon this skill, ability, learning and sufficiency to exercise and practise this profession is trusted to the College of Physicians and this Court will not take it from them, nor interrupt them in the due and proper exercise of it. But their conduct in the exercise of this trust thus committed to them ought to be fair, candid and unprejudiced; not arbitrary, capricious, or biased; much less, warped by resentment, or personal dislike.” 79. To quote again, Michael Supperstone and James Goudie; in their work Judicial Review (1992 Edn.) it is observed at pp. 119 to 121 as under: “The assertion of a claim to examine the reasonableness been done by a public authority inevitably led to differences of judicial opinion as to the circumstances in which the court should intervene. These differences of opinion were resolved in two landmark cases which confined the circumstances for intervention to narrow limits. In Kruse v. Johnson [(1898) 2 QB 91 : (1895-9) All ER Rep 105] a specially constituted divisional court had to consider the validity of a bye-law made by a local authority. In the leading judgment of Lord Russell of Killowen, C.J., the approach to be adopted by the court was set out. Such bye-laws ought to be ‘benevolently’ interpreted, and credit ought to be given to those who have to administer them that they would be reasonably administered. In the leading judgment of Lord Russell of Killowen, C.J., the approach to be adopted by the court was set out. Such bye-laws ought to be ‘benevolently’ interpreted, and credit ought to be given to those who have to administer them that they would be reasonably administered. They could be held invalid if unreasonable : Where for instance bye-laws were found to be partial and unequal in their operation as between different classes, if they were manifestly unjust, if they disclosed bad faith, or if they involved such oppressive or gratuitous interference with the rights of citizens as could find no justification in the minds of reasonable men. Lord Russell emphasised that a bye-law is not unreasonable just because particular judges might think it went further than was prudent or necessary or convenient. In 1947 the Court of Appeal confirmed a similar approach for the review of executive discretion generally in Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn [(1948) 1 KB 223 : (1947) 2 All ER 680]. This case was concerned with a complaint by the owners of a cinema in Wednesbury that it was unreasonable of the local authority to licence performances on Sunday only subject to a condition that ‘no children under the age of 15 years shall be admitted to any entertainment whether accompanied by an adult or not’. In an extempore judgment, Lord Greene, M.R. drew attention to the fact that the word ‘unreasonable’ had often been used in a sense which comprehended different grounds of review. (At p. 229, where it was said that the dismissal of a teacher for having red hair (cited by Warrington, L.J. in Short v. Poole Corpn. [(1926) 1 Ch 66, 91 : 1925 All ER Rep 74], as an example of a ‘frivolous and foolish reason’) was, in another sense, taking into consideration extraneous matters, and might be so unreasonable that it could almost be described as being done in bad faith; see also R. v. Tower Hamlets London Borough Council, ex p Chetnik Developments Ltd. [ 1988 AC 858 , 873 : (1988) 2 WLR 654 : (1988) 1 All ER 961] (Chapter 4, p. 73, supra). He summarised the principles as follows: ‘The Court is entitled to investigate the action of the local authority with a view to seeing whether or not they have taken into account matters which they ought not to have taken into account, or, conversely, have refused to take into account or neglected to take into account matter which they ought to take into account. Once that question is answered in favour of the local authority, it may still be possible to say that, although the local authority had kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere. The power of the court to interfere in each case is not as an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority has contravened the law by acting in excess of the power which Parliament has confided in them.’ This summary by Lord Greene has been applied in countless subsequent cases. “The modern statement of the principle is found in a passage in the speech of Lord Diplock in Council of Civil Service Unions v. Minister for Civil Service [(1985) 1 AC 374 : (1984) 3 All ER 935 : (1984) 3 WLR 1174 ] : ‘By “irrationality” I mean what can now be succinctly referred to as “Wednesbury unreasonableness”. (Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn. [(1948) 1 KB 223 : (1947) 2 All ER 680] ) It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at.’ ” 80. At this stage, The Supreme Court Practice, 1993, Vol. 1, pp. 849-850, may be quoted: “4. Wednesbury principle.— A decision of a public authority will be liable to be quashed or otherwise dealt with by an appropriate order in judicial review proceedings where the court concludes that the decision is such that no authority properly directing itself on the relevant law and acting reasonably could have reached it. (Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn. Wednesbury principle.— A decision of a public authority will be liable to be quashed or otherwise dealt with by an appropriate order in judicial review proceedings where the court concludes that the decision is such that no authority properly directing itself on the relevant law and acting reasonably could have reached it. (Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn. [(1948) 1 KB 223 : (1947) 2 All ER 680], per Lord Greene, M.R.)” 81. Two other facets of irrationality may be mentioned. (1) It is open to the court to review the decision-maker's evaluation of the facts. The court will intervene where the facts taken as a whole could not logically warrant the conclusion of the decision-maker. If the weight of facts pointing to one course of action is overwhelming, then a decision the other way, cannot be upheld. Thus, in Emma Hotels Ltd. v. Secretary of State for Environment [(1980) 41 P & CR 255], the Secretary of State referred to a number of factors which led him to the conclusion that a non-resident's bar in a hotel was operated in such a way that the bar was not an incident of the hotel use for planning purposes, but constituted a separate use. The Divisional Court analysed the factors which led the Secretary of State to that conclusion and, having done so, set it aside. Donaldson, L.J. said that he could not see on what basis the Secretary of State had reached his conclusion. (2) A decision would be regarded as unreasonable if it is impartial and unequal in its operation as between different classes. On this basis in R. v. Barnet London Borough Council, ex p Johnson [(1989) 88 LGR 73] the condition imposed by a local authority prohibiting participation by those affiliated with political parties at events to be held in the authority's parks was struck down. 82. Bernard Schwartz in Administrative Law, 2nd Edn., p. 584 has this to say: “If the scope of review is too broad, agencies are turned into little more than media for the transmission of cases to the courts. That would destroy the values of agencies created to secure the benefit of special knowledge acquired through continuous administration in complicated fields. At the same time, the scope of judicial inquiry must not be so restricted that it prevents full inquiry into the question of legality. That would destroy the values of agencies created to secure the benefit of special knowledge acquired through continuous administration in complicated fields. At the same time, the scope of judicial inquiry must not be so restricted that it prevents full inquiry into the question of legality. If that question cannot be properly explored by the judge, the right to review becomes meaningless. ‘It makes judicial review of administrative orders a hopeless formality for the litigant. … It reduces the judicial process in such cases to a mere feint.’ Two overriding considerations have combined to narrow the scope of review. The first is that of deference to the administrative expert. In Chief Justice Neely's words: ‘I have very few illusions about my own limitations as a judge and from those limitations I generalise to the inherent limitations of all appellate courts reviewing rate cases. It must be remembered that this Court sees approximately 1262 cases a year with five judges. I am not an accountant, electrical engineer, financier, banker, stock broker, or systems management analyst. It is the height of folly to expect judges intelligently to review a 5000 page record addressing the intricacies of public utility operation.’ It is not the function of a judge to act as a superboard, or with the zeal of a pedantic schoolmaster substituting its judgment for that of the administrator. The result is a theory of review that limits the extent to which the discretion of the expert may be scrutinised by the non-expert judge. The alternative is for the court to overrule the agency on technical matters where all the advantages of expertise lie with the agencies. If a court were to review fully the decision of a body such as state board of medical examiners ‘it would find itself wandering amid the maze of therapeutics or boggling at the mysteries of the pharmacopoeia’. Such a situation as a state court expressed it many years ago ‘is not a case of the blind leading the blind but of one who has always been deaf and blind insisting that he can see and hear better than one who has always had his eyesight and hearing and has always used them to the utmost advantage in ascertaining the truth in regard to the matter in question’. The second consideration leading to narrow review is that of calendar pressure. The second consideration leading to narrow review is that of calendar pressure. In practical terms it may be the more important consideration. More than any theory of limited review it is the pressure of the judicial calendar combined with the elephantine bulk of the record in so many review proceedings which leads to perfunctory affirmance of the vast majority of agency decisions.” 83. A modern comprehensive statement about judicial review by Lord Denning is very apposite; it is perhaps worthwhile noting that he stresses the supervisory nature of the jurisdiction: “Parliament often entrusts the decision of a matter to a specified person or body, without providing for any appeal. It may be a judicial decision, or a quasi-judicial decision, or an administrative decision. Sometimes Parliament says its decision is to be final. At other times it says nothing about it. In all these cases the courts will not themselves take the place of the body to whom Parliament has entrusted the decision. The courts will not themselves embark on a rehearing of the matter. See Healey v. Minister of Health [ (1955) 1 QB 221 : (1954) 3 All ER 449 : (1954) 3 WLR 815 ]. But nevertheless, the courts will, if called upon, act in a supervisory capacity. They will see that the decision-making body acts fairly. See H.K. (an infant), Re [(1967) 2 QB 617, 630 : (1967) 1 All ER 226 : (1967) 2 WLR 692], and R. v. Gaming Board for Great Britain, ex p Benaim and Khaida [ (1970) 2 QB 417 : (1970) 2 All ER 528 : (1970) 2 WLR 1009 ]. The courts will ensure that the body acts in accordance with the law. If a question arises on the interpretation of words, the courts will decide it by declaring what is the correct interpretation. See Punton v. Ministry of Pensions and National Insurance [ (1963) 1 WLR 186 : (1963) 1 All ER 275]. And if the decision-making body has gone wrong in its interpretation they can set its order aside. See Ashbridge Investments Ltd. v. Minister of Housing and Local Government [ (1965) 1 WLR 1320 : (1965) 3 All ER 371]. (I know of some expressions to the contrary but they are not correct). And if the decision-making body has gone wrong in its interpretation they can set its order aside. See Ashbridge Investments Ltd. v. Minister of Housing and Local Government [ (1965) 1 WLR 1320 : (1965) 3 All ER 371]. (I know of some expressions to the contrary but they are not correct). If the decision-making body is influenced by considerations which ought not to influence it; or fails to take into account matters which it ought to take into account, the court will interfere. See Padfield v. Minister of Agriculture, Fisheries and Food [ 1968 AC 997 : (1968) 1 All ER 694]. If the decision-making body comes to its decision on no evidence or comes to an unreasonable finding — so unreasonable that a reasonable person would not have come to it — then again the courts will interfere. See Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn. [(1948) 1 KB 223 : (1947) 2 All ER 680] If the decision-making body goes outside its powers or misconstrues the extent of its powers, then, too the courts can interfere. See Anisminic Ltd. v. Foreign Compensation Commission [(1969) 2 AC 147 : (1969) 1 All ER 208 : (1969) 2 WLR 163 ]. And, of course, if the body acts in bad faith or for an ulterior object, which is not authorised by law, its decision will be set aside. See Sydney Municipal Council v. Campbell [1925 AC 338 : 1924 All ER Rep 930]. In exercising these powers, the courts will take into account any reasons which the body may give for its decisions. If it gives no reasons — in a case when it may reasonably be expected to do so, the courts may infer that it has no good reason for reaching its conclusion, and act accordingly. See Padfield case (as AC pp. 1007, 1061) [ 1968 AC 997 : (1968) 1 All ER 694].” 84. We may usefully refer to Administrative Law Rethinking Judicial Control of Bureaucracy by Christopher F. Edley, JR (1990 Edn.). At p. 96 it is stated thus: “A great deal of administrative law boils down to the scope of review problem; defining what degree of deference a court will accord to an agency's findings, conclusions, and choices, including choice of procedures. It is misleading to speak of a ‘doctrine’, or ‘the law’, of scope of review. At p. 96 it is stated thus: “A great deal of administrative law boils down to the scope of review problem; defining what degree of deference a court will accord to an agency's findings, conclusions, and choices, including choice of procedures. It is misleading to speak of a ‘doctrine’, or ‘the law’, of scope of review. It is instead just a big problem, that is addressed piecemeal by a large collection of doctrines. Kenneth Culp Davis has offered a condensed summary of the subject: ‘Courts usually substitute (their own) judgment on the kind of questions of law that are within their special competence, but on other question they limit themselves to deciding reasonableness; they do not clarify the meaning of reasonableness but retain full discretion in each case to stretch it in either direction.’ ” 85. In Universal Camera Corpn. v. National Labor Relations Board [340 US 474, 488-89 : 95 L Ed 456 (1950)] Justice Frankfurter stated: “A formula for judicial review of administrative action may afford grounds for certitude but cannot assure certainty of application. Some scope for judicial discretion in applying the formula can be avoided only by falsifying the actual process of judging or by using the formula as an instrument of futile casuistry. It cannot be too often repeated that judges are not automata. The ultimate reliance for the fair operation of any standard is a judiciary of high competence and character and the constant play of an informed professional critique upon its work. Since the precise way in which courts interfere with agency findings cannot be imprisoned within any form of words, new formulas attempting to rephrase the old are not likely to be more helpful than the old. There are no talismanic words that can avoid the process of judgment. The difficulty is that we cannot escape, in relation to this problem, the use of undefined defining terms.” 86. An innovative approach is made by Clive Lewis as to why the courts should be slow in quashing administrative decisions (in his Judicial Remedies in Public Law 1992 Edn. at pp. 294-95). The illuminating passage reads as under: “The courts now recognise that the impact on the administration is relevant in the exercise of their remedial jurisdiction. Quashing decisions may impose heavy administrative burdens on the administration, divert resources towards reopening decisions, and lead to increased and unbudgeted expenditure. at pp. 294-95). The illuminating passage reads as under: “The courts now recognise that the impact on the administration is relevant in the exercise of their remedial jurisdiction. Quashing decisions may impose heavy administrative burdens on the administration, divert resources towards reopening decisions, and lead to increased and unbudgeted expenditure. Earlier cases took the robust line that the law had to be observed, and the decision invalidated whatever the administrative inconvenience caused. The courts nowadays recognise that such an approach is not always appropriate and may not be in the wider public interest. The effect on the administrative process is relevant to the courts' remedial discretion and may prove decisive. This is particularly the case when the challenge is procedural rather than substantive, or if the courts can be certain that the administrator would not reach a different decision even if the original decisions were quashed. Judges may differ in the importance they attach to the disruption that quashing a decision will cause. They may also be influenced by the extent to which the illegality arises from the conduct of the administrative body itself, and their view of that conduct. The current approach is best exemplified by R. v. Monopolies and Mergers Commission, ex p Argyll Group plc [(1986) 1 WLR 736, 774 : (1986) 2 All ER 257, CA].” 87. Sir John Donaldson, M.R. in R. v. Monopolies and Mergers Commission, ex p Argyll Group plc [(1986) 1 WLR 736, 774 : (1986) 2 All ER 257, CA] observed thus: “We are sitting as a public law court concerned to review an administrative decision, albeit one which has to be reached by the application of judicial or quasi-judicial principles. We have to approach our duties with a proper awareness of the needs of public administration. I cannot catalogue them all but, in the present context, would draw attention to a few which are relevant. Good public administration is concerned with substance rather than form. … Good public administration is concerned with the speed of decision, particularly in the financial field. … Good public administration requires a proper consideration of the public interest. In this context, the Secretary of State is the guardian of the public interest. … Good public administration requires a proper consideration of the legitimate interests of individual citizens, however rich and powerful they may be and whether they are natural or juridical persons. … Good public administration requires a proper consideration of the public interest. In this context, the Secretary of State is the guardian of the public interest. … Good public administration requires a proper consideration of the legitimate interests of individual citizens, however rich and powerful they may be and whether they are natural or juridical persons. But in judging the relevance of an interest, however legitimate, regard has to be had to the purpose of the administrative process concerned. … Lastly, good public administration requires decisiveness and finality, unless there are compelling reasons to the contrary.” 88. We may now look at some of the pronouncements of this Court including the authorities cited by Mr Ashoke Sen. Fasih Chaudhary v. Director General, Doordarshan [ (1989) 1 SCC 89 ] was a case in which the Court was concerned with the award of a contract for show of sponsored TV serial. At p. 92 in paragraphs 5 and 6 it was held thus: “It is well settled that there should be fair play in action in a situation like the present one, as was observed by this Court in Ram & Shyam Co. v. State of Haryana [ (1985) 3 SCC 267 , 268-69]. It is also well settled that the authorities like Doordarshan should act fairly and their action should be legitimate and fair and transaction should be without any aversion, malice or affection. Nothing should be done which gives the impression of favouritism or nepotism. See the observations of this Court in Haji T.M. Hassan Rawther v. Kerala Financial Corpn. [ (1988) 1 SCC 166 , 173 (para 14)] While, as mentioned hereinbefore, fair play in action in matters like the present one is an essential requirement, similarly, however, ‘free play in the joints’ is also a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere as the present one. Judged from that standpoint of view, though all the proposals might not have been considered strictly in accordance with order of precedence, it appears that these were considered fairly, reasonably, objectively and without any malice or ill-will.” 89. In G.B. Mahajan v. Jalgaon Municipal Council [ (1991) 3 SCC 91 (para 43-46)] the concept of reasonableness in administrative law came to be dealt with elaborately by one of us, Venkatachaliah, J. (as he then was). In G.B. Mahajan v. Jalgaon Municipal Council [ (1991) 3 SCC 91 (para 43-46)] the concept of reasonableness in administrative law came to be dealt with elaborately by one of us, Venkatachaliah, J. (as he then was). In paragraphs 37 to 41 the Court observed thus: “It was urged that the basic concept of the manner of the development of the real estate and disposal of occupancy rights were vitiated by unreasonableness. It is a truism, doctrinally, that powers must be exercised reasonably. But as Prof. Wade points out: ‘The doctrine that powers must be exercised reasonably has to be reconciled with the no less important doctrine that the court must not usurp the discretion of the public authority which Parliament appointed to take the decision. Within the bounds of legal reasonableness is the area in which the deciding authority has genuinely free discretion. If it passes those bounds, it acts ultra vires. The court must therefore resist the temptation to draw the bounds too tightly, merely according to its own opinion. It must strive to apply an objective standard which leaves to the deciding authority the full range of choices which the legislature is presumed to have intended. Decisions which are extravagant or capricious cannot be legitimate. But if the decision is within the confines of reasonableness, it is no part of the court's function to look further into its merits. “With the question whether a particular policy is wise or foolish the court is not concerned; it can only interfere if to pursue it is beyond the powers of the authority”…’ In the arguments there is some general misapprehension of the scope of the ‘reasonableness’ test in administrative law. By whose standards of reasonableness that a matter is to be decided? Some phrases which pass from one branch of law to another — as did the expressions ‘void’ and ‘voidable’ from private law areas to public law situations — carry over with them meanings that may be inapposite in the changed context. Some such thing has happened to the words ‘reasonable’, ‘reasonableness’ etc. In Tiller v. Atlantic Coast Line Rail Road Co. Some such thing has happened to the words ‘reasonable’, ‘reasonableness’ etc. In Tiller v. Atlantic Coast Line Rail Road Co. [318 US 54 : 87 L Ed 610 (1942)], Justice Frankfurter said: ‘A phrase begins life as a literary expression; its felicity leads to its lazy repetition; and repetition soon establishes it as a legal formula, undiscriminatingly used to express different and sometimes contradictory ideas.’ Different contexts in which the operation of ‘reasonableness’ as test of validity operates must be kept distinguished. For instance as the arguments in the present case invoke, the administrative law test of ‘reasonableness’ as the touchstone of validity of the impugned resolutions is different from the test of the ‘reasonable man’ familiar to the law of torts, whom English law figuratively identifies as the ‘man on the Clapham omnibus’. In the latter case the standards of the ‘reasonable man’, to the extent such a ‘reasonable man’ is court's creation, is in a manner of saying, a mere transferred epithet. Lord Radcliffe observed : (All ER p. 160) ‘By this time, it might seem that the parties themselves have become so far disembodied spirits that their actual persons should be allowed to rest in peace. In their place there rises the figure of the fair and reasonable man. And the spokesman of the fair and reasonable man, who represents after all no more than the anthropomorphic conception of justice, is, and must be, the court itself….’ (emphasis supplied) See Davis Contractors Ltd. v. Fareham U.D.C. [(1956) 2 All ER 145, 160 : 1956 AC 696 : (1956) 3 WLR 37 ] Yet another area of reasonableness which must be distinguished is the constitutional standards of ‘reasonableness’ of the restrictions on the fundamental rights of which the court of judicial review is the arbiter. The administrative law test of reasonableness is not by the standards of the ‘reasonable man’ of the torts law. Prof. Wade says: ‘This is not therefore the standard of “the man on the Clapham omnibus”. It is the standard indicated by a true construction of the Act which distinguishes between what the statutory authority may or may not be authorised to do. It distinguishes between proper use and improper abuse of power. It is often expressed by saying that the decision is unlawful if it is one to which no reasonable authority could have come. It is the standard indicated by a true construction of the Act which distinguishes between what the statutory authority may or may not be authorised to do. It distinguishes between proper use and improper abuse of power. It is often expressed by saying that the decision is unlawful if it is one to which no reasonable authority could have come. This is the essence of what is now commonly called “Wednesbury unreasonableness”, after the now famous case in which Lord Greene, M.R. expounded it.’ ” (emphasis supplied) 90. Referring to the doctrine of unreasonableness, Prof. Wade says in Administrative Law (supra): “The point to note is that a thing is not unreasonable in the legal sense merely because the court thinks it is unwise.” 91. In Food Corpn. of India v. Kamdhenu Cattle Feed Industries [ (1993) 1 SCC 71 ] it was observed thus : (SCC p. 76, para 7) “In contractual sphere as in all other State actions, the State and all its instrumentalities have to conform to Article 14 of the Constitution of which non-arbitrariness is a significant facet. There is no unfettered discretion in public law : A public authority possesses powers only to use them for public good. This imposes the duty to act fairly and to adopt a procedure which is ‘fairplay in action’.” 92. In Sterling Computers Limited v. M&N Publications Ltd. [ (1993) 1 SCC 445 ] this Court observed thus : (SCC p. 455, para 12) “In contracts having commercial element, some more discretion has to be conceded to the authorities so that they may enter into contracts with persons, keeping an eye on the augmentation of the revenue. But even in such matters they have to follow the norms recognised by courts while dealing with public property. It is not possible for courts to question and adjudicate every decision taken by an authority, because many of the Government Undertakings which in due course have acquired the monopolist position in matters of sale and purchase of products and with so many ventures in hand, they can come out with a plea that it is not always possible to act like a quasi-judicial authority while awarding contracts. Under some special circumstances a discretion has to be conceded to the authorities who have to enter into contract giving them liberty to assess the overall situation for purpose of taking a decision as to whom the contract be awarded and at what terms. If the decisions have been taken in bona fide manner although not strictly following the norms laid down by the courts, such decisions are upheld on the principle laid down by Justice Holmes, that courts while judging the constitutional validity of executive decisions must grant certain measure of freedom of ‘play in the joints’ to the executive.” 93. In Union of India v. Hindustan Development Corpn. [ (1993) 3 SCC 499 ] this Court held thus : (SCC p. 515, para 9) “… the Government had the right to either accept or reject the lowest offer but that of course, if done on a policy, should be on some rational and reasonable grounds. In Erusian Equipment & Chemicals Ltd. v. State of W.B. [ (1975) 1 SCC 70 : (1975) 2 SCR 674 ] this Court observed as under : (SCC p. 75, para 17) ‘When the Government is trading with the public, “the democratic form of Government demands equality and absence of arbitrariness and discrimination in such transactions”. The activities of the Government have a public element and, therefore, there should be fairness and equality. The State need not enter into any contract with anyone, but if it does so, it must do so fairly without discrimination and without unfair procedure.’ ” 94. The principles deducible from the above are: (1) The modern trend points to judicial restraint in administrative action. (2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made. (3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible. (4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts. (4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts. (5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides. (6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure. Based on these principles we will examine the facts of this case since they commend to us as the correct principles. 16.42. He submits that the decision of the Hon’ble Apex Court in Tata Cellular’s case is one of the leading decisions insofar as the power of the Courts to interfere in administrative actions which should include contractual matters like tenders and submits that the modern trend is for the Courts to excise judicial restraint in administrative or economic matters where decisions have been taken by persons who have expertise in the field. The power of judicial review vested with Constitutional Courts in contractual matters is not one of an appeal but is only to excise power to ascertain if there is no wrongdoing by the executive. The Courts not having any expertise in such fields ought not to try and substitute its wisdom for that of the State or its agencies and on that basis, he submits that the Government should necessarily have the freedom to contract and any action taken by the State and/or its agencies can be tested by the application of the Wednesbury’s principles of reasonableness and as also ascertaining whether the decision and action on part of the States or its authorities are free from arbitrariness, not affected by bias or actuated by malafides. Again, needless to say all these aspects are required to be established by the person alleging that there is arbitrariness, bias or malafides. Again, needless to say all these aspects are required to be established by the person alleging that there is arbitrariness, bias or malafides. In the present case, he submits that except for making a vague allegation of arbitrariness, bias and malafides, the petitioners have not established the same. The respondents having the necessary expertise and formulated and issued the tender which is applicable to one and all, the petitioners not having been able to establish that the tender conditions were drafted to suit a particular person or entity, the petitioners have miserably failed in establishing any lacunae in the tender process. 16.43. He relies upon the decision of the Hon’ble Apex Court in Airport Authority of India vs Centre for Aviation Policy, Safety & Research & Ors., (2022) SCC OnLine SC 1334, more particularly para nos. 26-32, 33 and 34 thereof, which have been reproduced hereunder for easy reference: 26. At the outset, it is required to be noted that respondent No. 1 claiming to be a non-profit organisation carrying out research, advisory and advocacy in the field of civil aviation had filed a writ petition challenging the tender conditions in the respective RFPs. It is required to be noted that none of the GHAs who participated in the tender process and/or could have participated in the tender process have challenged the tender conditions. It is required to be noted that the writ petition before the High Court was not in the nature of Public Interest Litigation. In that view of the matter, it is not appreciable how respondent No. 1 -original writ petitioner being an NGO would have any locus standi to maintain the writ petition challenging the tender conditions in the respective RFPs. Respondent No. 1 cannot be said to be an” aggrieved party”. Therefore, in the present case, the High Court has erred in entertaining the writ petition at the instance of respondent No. 1, challenging the eligibility criteria/tender conditions mentioned in the respective RFPs. The High Court ought to have dismissed the writ petition on the ground of locus standi of respondent No. 1 -original writ petitioner to maintain the writ petition. 27. Even otherwise, even on merits also, the High Court has erred in quashing and setting aside the eligibility criteria/tender conditions mentioned in the respective RFPs, while exercising the powers under Article 226 of the Constitution of India. 27. Even otherwise, even on merits also, the High Court has erred in quashing and setting aside the eligibility criteria/tender conditions mentioned in the respective RFPs, while exercising the powers under Article 226 of the Constitution of India. As per the settled position of law, the terms and conditions of the Invitation to Tender are within the domain of the tenderer/tender making authority and are not open to judicial scrutiny, unless they are arbitrary, discriminatory or mala fide. As per the settled position of law, the terms of the Invitation to Tender are not open to judicial scrutiny, the same being in the realm of contract. The Government/tenderer/tender making authority must have a free hand in setting the terms of the tender. 28. While considering the scope and ambit of the High Court under Article 226 of the Constitution of India with respect to judicial scrutiny of the eligibility criteria/tender conditions, few decisions of this Court are required to be referred to, which are as under: 29. In the case of Maa Binda Express Carrier (supra), in paragraph 8, this Court observed and held as under: “8. The scope of judicial review in matters relating to award of contracts by the State and its instrumentalities is settled by a long line of decisions of this Court. While these decisions clearly recognise that power exercised by the Government and its instrumentalities in regard to allotment of contract is subject to judicial review at the instance of an aggrieved party, submission of a tender in response to a notice inviting such tenders is no more than making an offer which the State or its agencies are under no obligation to accept. The bidders participating in the tender process cannot, therefore, insist that their tenders should be accepted simply because a given tender is the highest or lowest depending upon whether the contract is for sale of public property or for execution of works on behalf of the Government. All that participating bidders are entitled to is a fair, equal and non-discriminatory treatment in the matter of evaluation of their tenders. It is also fairly well settled that award of a contract is essentially a commercial transaction which must be determined on the basis of consideration that are relevant to such commercial decision. All that participating bidders are entitled to is a fair, equal and non-discriminatory treatment in the matter of evaluation of their tenders. It is also fairly well settled that award of a contract is essentially a commercial transaction which must be determined on the basis of consideration that are relevant to such commercial decision. This implies that terms subject to which tenders are invited are not open to the judicial scrutiny unless it is found that the same have been tailor-made to benefit any particular tenderer or class of tenderers. So also, the authority inviting tenders can enter into negotiations or grant relaxation for bona fide and cogent reasons provided such relaxation is permissible under the terms governing the tender process.” 30. In the case of Michigan Rubber (India) Ltd. (supra), after considering the law on the judicial scrutiny with respect to tender conditions, ultimately it is concluded in paragraph 23 as under: “23. From the above decisions, the following principles emerge: (a) The basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play. These actions are amenable to the judicial review only to the extent that the State must act validly for a discernible reason and not whimsically for any ulterior purpose. If the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities; (b) Fixation of a value of the tender is entirely within the purview of the executive and the courts hardly have any role to play in this process except for striking down such action of the executive as is proved to be arbitrary or unreasonable. If the Government acts in conformity with certain healthy standards and norms such as awarding of contracts by inviting tenders, in those circumstances, the interference by courts is very limited; (c) In the matter of formulating conditions of a tender document and awarding a contract, greater latitude is required to be conceded to the State authorities unless the action of the tendering authority is found to be malicious and a misuse of its statutory powers, interference by courts is not warranted; (d) Certain preconditions or qualifications for tenders have to be laid down to ensure that the contractor has the capacity and the resources to successfully execute the work; and (e) If the State or its instrumentalities act reasonably, fairly and in public interest in awarding contract, here again, interference by court is very restrictive since no person can claim a fundamental right to carry on business with the Government.” 31. In the aforesaid decision, it is further observed that the Government and their undertakings must have a free hand in setting terms of the tender and only if it is arbitrary, discriminatory, mala fide or actuated by bias, the courts would interfere. It is further observed that the courts cannot interfere with the terms of the tender prescribed by the Government because it feels that some other terms in the tender would have been fair, wiser or logical. 32. Similar views have been expressed in the case of Educomp Datamatics Ltd. (supra) and Meerut Development Authority (supra). 33. In the present case, the AAI explained before the High Court the rationale behind the respective conditions, namely, clustering of 49 airports into 4 region-wise sub-categories/clusters; criteria for evaluation -36 months experience in past 7 years in providing 3 out of 7 Core GHS and the financial capacity -Annual Turnover of Rs. 30 crores (modified as Rs. 18 crores) in any one of last three financial years. 34. Having gone through the respective clauses/conditions which are held to be arbitrary and illegal by the High Court, we are of the opinion that the same cannot be said to be arbitrary and/or mala fide and/or actuated by bias. It was for the AAI to decide its own terms and fix the eligibility criteria. 16.44. 34. Having gone through the respective clauses/conditions which are held to be arbitrary and illegal by the High Court, we are of the opinion that the same cannot be said to be arbitrary and/or mala fide and/or actuated by bias. It was for the AAI to decide its own terms and fix the eligibility criteria. 16.44. By relying on Airport Authority of India's case, he submits that it is the settled position of law that the terms and conditions of invitation to tenders are within the domain of the tenderers or Tender Making Authority and are not open to judicial scrutiny unless they are arbitrary, discriminatory or malafide. Thus, as such, apart from those circumstances, the invitation to tender is not open to judicial scrutiny, the same being in the realm of contract. The State, having provided a reasonable explanation as to why the earlier policy of inviting tenders at the Taluka level has now been changed to the District level. This explanation not being arbitrary, malafide or discriminatory is required to be accepted by this Court and the petition is required to be dismissed. 16.45. He relies upon the decision of the Hon’ble Apex Court in Air India Ltd. vs Cochin International Airport Ltd. & Ors., (2000) 2 SCC 617 , 2000 INSC 39, more particularly para nos. 7, 8 and 9 thereof, which have been reproduced hereunder for easy reference: 7. The law relating to award of a contract by the State, its corporations and bodies acting as instrumentalities and agencies of the Government has been settled by the decision of this Court in Ramana Dayaram Shetty v. International Airport Authority of India [ (1979) 3 SCC 489 ], Fertilizer Corpn. Kamgar Union (Regd.) v. Union of India [ (1981) 1 SCC 568 ], CCE v. Dunlop India Ltd. [ (1985) 1 SCC 260 : 1985 SCC (Tax) 75], Tata Cellular v. Union of India [ (1994) 6 SCC 651 ], Ramniklal N. Bhutta v. State of Maharashtra [ (1997) 1 SCC 134 ] and Raunaq International Ltd. v. I.V.R. Construction Ltd. [ (1999) 1 SCC 492 ] The award of a contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision considerations which are paramount are commercial considerations. The State can choose its own method to arrive at a decision. In arriving at a commercial decision considerations which are paramount are commercial considerations. The State can choose its own method to arrive at a decision. It can fix its own terms of invitation to tender and that is not open to judicial scrutiny. It can enter into negotiations before finally deciding to accept one of the offers made to it. Price need not always be the sole criterion for awarding a contract. It is free to grant any relaxation, for bona fide reasons, if the tender conditions permit such a relaxation. It may not accept the offer even though it happens to be the highest or the lowest. But the State, its corporations, instrumentalities and agencies are bound to adhere to the norms, standards and procedures laid down by them and cannot depart from them arbitrarily. Though that decision is not amenable to judicial review, the court can examine the decision-making process and interfere if it is found vitiated by mala fides, unreasonableness and arbitrariness. The State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision-making process the court must exercise its discretionary power under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the court should intervene. 8. In view of this settled legal position, Mr Andhyarujina, learned Senior Counsel appearing for Cambatta rightly and fairly did not dispute that CIAL was not bound to accept the highest offer or that it was entitled to enter into negotiations with Air India. What he contended was that CIAL ought to have treated all the tenderers fairly. As Air India was given an opportunity to give a presentation and revise its offer it ought to have given a chance to Cambatta also to have its say with respect to the offer made by Air India and to match its offer with the offer of Air India. As Air India was given an opportunity to give a presentation and revise its offer it ought to have given a chance to Cambatta also to have its say with respect to the offer made by Air India and to match its offer with the offer of Air India. He submitted that the Evaluation Committee had recommended Cambatta for awarding the contract after considering all the relevant factors and, therefore, it was incumbent upon the Board of Directors to disclose why they differed from the said recommendation and decided to accept the offer of Air India. He also submitted that the decision of CIAL was vitiated because of the influence exercised by Air India and the Ministry of Civil Aviation and also because it took into consideration an irrelevant consideration that Air India is a public sector undertaking and a national carrier. 9. What was emphasised by Mr Nariman and Mr Venugopal is that CIAL was incorporated to set up a new private international airport. At all airports, permissions for operating aircraft, maintenance, licensing of crew and flying schedules of airlines is controlled by the Directorate General of Civil Aviation. Applications for hangar space, landing and parking facilities and ground-handling are made to and granted by the Airports Authority of India. This was the first attempt to privatise. Therefore, CIAL, in order to make its project viable and successful, after taking into consideration various factors, decided to entrust the task of providing ground-handling services for all airlines operating from the airport to one single agency. For achieving this purpose it invited offers by writing letters to eight reputed agencies to enable it to decide the best terms and conditions for awarding the contract and to select the best agency. They submitted that, for these reasons, it did not choose to adopt the public tender mode. In its counter-affidavit filed in the High Court this position was made clear. What was stated in the counter-affidavit was as under: “The object of inviting their offers was only to get the terms and conditions of the respective companies for consideration by the Board of Directors of this respondent and to select the best-suited to the interest of the respondent. Being a new project implemented by raising finance from various sources all efforts were made to make the project viable. Hence when Ext. Being a new project implemented by raising finance from various sources all efforts were made to make the project viable. Hence when Ext. R-1(a) letter was sent inviting offers the paramount consideration was to get the best offer for the benefit of the 1st respondent. There was no minimum estimated amount or other conditions for acceptance and rejection like the usual tender procedure.” The High Court was also of the view that if the offers were made only pursuant to the letter dated 12-11-1997 the respondents would have a good case. But in view of the Board of Directors' decision to be fair and CIAL's letter dated 13-7-1998 calling upon the tenderers to give the best offer before it took a final decision and informing them that the contract period would be 10 years and the subsequent letter dated 5-8-1998 requiring the tenderers to give a bank guarantee, CIAL was bound to treat this case as a case of public tender and for that reason it was not open to it to say that it was free to accept that offer which was best suited to it. It is, however, not necessary to deal with this aspect more elaborately and point out how the High Court's view is wrong as it was not disputed by the learned counsel appearing for Cambatta that it was open to CIAL not to accept the highest offer of Cambatta if it had good reasons to do so. It was at no point of time declared by CIAL that it would accept the highest offer or accept the offer on a particular basis. All along it had made clear that it would accept that offer which was found to be the best in their interest. 16.46. By relying on Cochin International Airport Ltd's case, he submits that the State can choose its own method of arriving at commercial decisions. It can fix its own terms of invitation to tender, enter into negotiation before finally accepting an offer. It was also free to grant any relaxation for bonafide reasons if the tender conditions permit such relaxation. The only manner such a decision can be challenged is if the State or its instrumentalities do not adhere to the norms, standards and procedures laid down and it is only in respect of this aspect that powers of judicial review can be exercised. The only manner such a decision can be challenged is if the State or its instrumentalities do not adhere to the norms, standards and procedures laid down and it is only in respect of this aspect that powers of judicial review can be exercised. Merely because there is a defect found in the decision making process, the Court ought not to interfere. Even in such cases, the Court ought to exercise great caution and exercise the power of judicial review only in public interest and not merely on a legal issue, since any delay in issuance of tender and completion of the work would adversely affect public interest. 16.47. He relies upon the decision of the Hon’ble Apex Court in Association of Registration Plates vs Union of India & Ors., (2005) 1 SCC 679 , 2004 INSC 682, more particularly para nos. 38, 43 and 44 thereof, which have been reproduced hereunder for easy reference: 38. In the matter of formulating conditions of a tender document and awarding a contract of the nature of ensuring supply of high security registration plates, greater latitude is required to be conceded to the State authorities. Unless the action of tendering authority is found to be malicious and a misuse of its statutory powers, tender conditions are unassailable. On intensive examination of tender conditions, we do not find that they violate the equality clause under Article 14 or encroach on fundamental rights of the class of intending tenderers under Article 19 of the Constitution. On the basis of the submissions made on behalf of the Union and State authorities and the justification shown for the terms of the impugned tender conditions, we do not find that the clauses requiring experience in the field of supplying registration plates in foreign countries and the quantum of business turnover are intended only to keep indigenous manufacturers out of the field. It is explained that on the date of formulation of scheme in Rule 50 and issuance of guidelines thereunder by the Central Government, there were not many indigenous manufacturers in India with technical and financial capability to undertake the job of supply of such high dimension, on a long-term basis and in a manner to ensure safety and security which is the prime object to be achieved by the introduction of new sophisticated registration plates. 42. 42. There is no material on record to infer any mala fide design on the part of the tendering authority to favour parties having foreign collaborations and to keep out of the fray indigenous manufacturers. The high security plate is a sophisticated article — new for a manufacturer in India. It is being introduced for the first time under the scheme contained in Rule 50 of the Rules and the Act. At the time of issuance of notices of tender, technical know-how for manufacture of plates and its further development was undoubtedly outside the country. Only a few concerns in India having collaboration with foreign parties possessed the expertise and were available in the market. The terms of the notice inviting tenders were formulated after joint deliberations of Central and State authorities and the available manufacturers in the field. The terms of the tender prescribing quantum of turnover of its business and business in plates with fixation of long-term period of the contract are said to have been incorporated to ensure uninterrupted supply of plates to a large number of existing vehicles within a period of two years and new vehicles for a long period in the coming years. It is easy to allege but difficult to accept that terms of the notices inviting tenders which were fixed after joint deliberations between State authorities and intending tenderers were so tailored as to benefit only a certain identified manufacturers having foreign collaboration. Merely because a few manufacturers like the petitioners do not qualify to submit the tender, being not in a position to satisfy the terms and conditions laid down, the tender conditions cannot be held to be discriminatory. 43. Certain preconditions or qualifications for tenders have to be laid down to ensure that the contractor has the capacity and the resources to successfully execute the work. Article 14 of the Constitution prohibits the Government from arbitrarily choosing a contractor at its will and pleasure. It has to act reasonably, fairly and in public interest in awarding contract. At the same time, no person can claim a fundamental right to carry on business with the Government. All that he can claim is that in competing for the contract, he should not be unfairly treated and discriminated, to the detriment of public interest. It has to act reasonably, fairly and in public interest in awarding contract. At the same time, no person can claim a fundamental right to carry on business with the Government. All that he can claim is that in competing for the contract, he should not be unfairly treated and discriminated, to the detriment of public interest. Undisputedly, the legal position which has been firmly established from various decisions of this Court, cited at the Bar (supra) is that government contracts are highly valuable assets and the court should be prepared to enforce standards of fairness on the Government in its dealings with tenderers and contractors. 44. The grievance that the terms of notice inviting tenders in the present case virtually create a monopoly in favour of parties having foreign collaborations, is without substance. Selection of a competent contractor for assigning job of supply of a sophisticated article through an open-tender procedure, is not an act of creating monopoly, as is sought to be suggested on behalf of the petitioners. What has been argued is that the terms of the notices inviting tenders deliberately exclude domestic manufacturers and new entrepreneurs in the field. In the absence of any indication from the record that the terms and conditions were tailor-made to promote parties with foreign collaborations and to exclude indigenous manufacturers, judicial interference is uncalled for. 16.48. By relying on Association of Registration Plates’s case, he submits that unless the action of Tendering Authority is found to be malicious and a misuse of statutory powers, the tender conditions in a invitation for tender are unassailable. No person, including any of the petitioners herein can claim a fundamental right to carry on business with the Government. All that the petitioners can claim for is that while bidding for or competing in a contract/tender, he should not be treated unfairly or discriminated against. In the present case, the petitioners have not been able to establish that there is any maliciousness on part of the respondent authorities or that there is any misuse of statutory power or that the petitioner has been unfairly treated or discriminated against. Hence on this ground also he submits that the above petitions are required to be dismissed. 17. Heard Sri.V.Srinivas, Smt.Ratna N.Shivayogimath, Sri.R.J.Bhusare, learned counsel for petitioners and Sri. Y.S. Vijay Kumar, learned Additional Advocate General for the State. Perused papers. 18. Hence on this ground also he submits that the above petitions are required to be dismissed. 17. Heard Sri.V.Srinivas, Smt.Ratna N.Shivayogimath, Sri.R.J.Bhusare, learned counsel for petitioners and Sri. Y.S. Vijay Kumar, learned Additional Advocate General for the State. Perused papers. 18. On the basis of the submissions made by all the counsel, I am of the considered opinion that the following points would arise for consideration: 1. Can the change from taluka to the district level be said to be Arbitrary and unreasonable? 2. Can the change of period of the Tender from 1 year to 2 years be said to be arbitrary and unreasonable? 3. Whether the change in the methodology of the tender can be said to be manifestly arbitrary? 4. Whether the conditions have been introduced so as to exclude the petitioners and favour any other tenderer, thereby violating Article 14 of the Constitution of India? 5. Whether the tender can be said to be violating Section 6C of The Karnataka Transparency In Public Procurements Act, 1999, on account of the tender favouring bigger businesses, thereby impinging on the rights of the petitioners who are Micro, Small & Medium Enterprises (MSMEs). 6. Whether the tender is bad for not providing 15% price preference available for MSME’s 7. Is the tender violative of the Standard terms of Contract? 8. Whether there is any legal infirmity in the nature of the tender or its process requiring interference at the hands of this Court? 9. What Order? 19. Before I answer the above points, let me deal with the scope of a Writ Petition pertaining to the challenge to a tender. The aspects relating to tenders is highly litigated, more so, on account of the economic advantages that a successful tender would derive. 20. The Hon’ble Apex Court has laid down the applicable law in the manner, mode and circumstances in which a Court can intervene in a tender matter in several of the judgments rendered by it. They are detailed as under:- 20.1. Judicial review is not concerned with matters of economic policy and the Court ought not to substitute its judgment for that of the legislature or its agents. If the decision is reasonably based on evidence, then Court ought not to intercede. The function of the Court is therefore limited to see that lawful authority is not abused. Judicial review is not concerned with matters of economic policy and the Court ought not to substitute its judgment for that of the legislature or its agents. If the decision is reasonably based on evidence, then Court ought not to intercede. The function of the Court is therefore limited to see that lawful authority is not abused. The function is not to appropriate to itself the task entrusted with such authority, so long as there is no abuse of the authority and the authority is within the limits, as also the decision and actions taken are in good faith, the Court ought not to interfere with the policy of the State. [Peerless General Finance and Investment Co. Ltd. vs RBI, (1992) 2 SCC 343 ] 20.2. The modern trend is for the Courts to exercise judicial restraint in administrative or economic matters where decisions have been taken by persons who have expertise in the field. The power of judicial review vested with Constitutional Courts in contractual matters is not one of an appeal but is only to exercise of power to ascertain if there is no wrongdoing by the executive. The Courts not having any expertise in such fields ought not to try and substitute its wisdom for that of the State or its agencies. The Government should necessarily have the freedom to contract and any action taken by the State and/or its agencies can be tested by the application of the Wednesbury’s principles of reasonableness and as also ascertaining whether the decision and action on part of the States or its authorities are free from arbitrariness, not affected by bias or actuated by malafides. Again, needless to say all these aspects are required to be established by the person alleging that there is arbitrariness, bias or malafides. [Tata Cellular vs Union of India, (1994) 6 SCC 651 ] 20.3. The Government is not bound by the previous policy. It can always revise its policy, so long as the policy is in public interest and such change in policy is not an abuse of power. [PTR Exports vs Union of India, (1996) 5 SCC 268 ] 20.4. [Tata Cellular vs Union of India, (1994) 6 SCC 651 ] 20.3. The Government is not bound by the previous policy. It can always revise its policy, so long as the policy is in public interest and such change in policy is not an abuse of power. [PTR Exports vs Union of India, (1996) 5 SCC 268 ] 20.4. It is not permissible for the Court to hold that some corrections have to be made in a contract when in fact there is no allegation of malice or ulterior motive and/or when the Court has not found any malafide or favouritism in the grant of contract in favour of the successful tenderer. [Asia Foundation & Constructions Ltd vs Trafalgar House Constructions (I) Ltd. & Ors. (1997) 1 SCC 738 ] 20.5. State can choose its own method of arriving at commercial decisions. It can fix its own terms of invitation to tender, enter into negotiation before finally accepting an offer. It was also free to grant any relaxation for bonafide reasons if the tender conditions permit such relaxation. The only manner such a decision can be challenged is if the State or its instrumentalities do not adhere to the norms, standards and procedures laid down and it is only in respect of this aspect that powers of judicial review can be exercised. Merely because there is a defect found in the decision making process, the Court ought not to interfere. Even in such cases, the Court ought to exercise great caution and exercise the power of judicial review only in public interest and not merely on a legal issue, since any delay in issuance of tender and completion of the work would adversely affect public interest. [Air India Ltd. vs Cochin International Airport Ltd. & Ors. (2000) 2 SCC 617 ] 20.6. Economic policies are not amenable for judicial review unless such policy is demonstrably shown to be contrary to any statutory provision of the Constitution. [BALCO Employees Union vs Union of India, (2002) 2 SCC 333 ] 20.7. The policy of the Government is not amenable for judicial review. Whenever there are matters affecting policy and/or required technical expertise, the Court ought to leave the matter of the decision making to those who are qualified, unless the policy or action is inconsistent with the Constitution and the laws, for arbitrary or irrational or would amount to abuse of power. Whenever there are matters affecting policy and/or required technical expertise, the Court ought to leave the matter of the decision making to those who are qualified, unless the policy or action is inconsistent with the Constitution and the laws, for arbitrary or irrational or would amount to abuse of power. [Federation of Railway Officers Association vs Union of India, (2003) 4 SCC 289 ] 20.8. Unless the action of Tendering Authority is found to be malicious and a misuse of statutory powers, the tender conditions in a invitation for tender are unassailable. No person, can claim a fundamental right to carry on business with the Government. All that a petitioner can claim for is that while bidding for or competing in a contract/tender, he should not be treated unfairly or discriminated against. [Association of Registration Plates vs Union of India & Ors., (2005) 1 SCC 679 ] 20.9. Bad faith and non-application of mind in regard to exercise of power on part of the employer would have to be established by the petitioner since the burden is on the person who seeks to make such an allegation. If the same were not to be so discharged, this Court would be required to presume that even if there is a deviation made in relation to the terms of the contract, the employer has such power of relaxation or making a deviation and so long as such relaxation or deviation is made by the employer/tendering authority in the interest of the project and/or in the interest of the public, the same ought not to be interfered with and the Constitution Courts would have to excise judicial restraint. [B.S.N. Joshi & Sons Ltd. vs Nair Coal Services Ltd & Ors. (2006) 11 SCC 548 ] 20.10. The Government has power to frame and reframe, change and re-change, adjust and readjust policy. Such change or re-change cannot be declared illegal or arbitrary or ultravires the Constitution only on the ground that the earlier policy has been given up. The State is required to have play in the joints, so as to make such changes, modifications or improvements from time to time as may be necessary to better achieve the objectives of the Government. [Dhampur Sugars (Kashipur) vs State of Uttranchal (2007) 8 SCC 418 ] 20.11. Fixation of value of the tender is entirely within the purview of the executive. [Dhampur Sugars (Kashipur) vs State of Uttranchal (2007) 8 SCC 418 ] 20.11. Fixation of value of the tender is entirely within the purview of the executive. Formulation of condition of a tender document and awarding a contract is also within the purview of the State authorities unless the fixation of value is indicated to be arbitrary or unreasonable and the conditions formulated are found to be malicious and a misuse of statutory powers, the Courts ought not to interfere. [Michigan Rubber (India) Ltd. vs State of Karnataka & Ors., (2012) 8 SCC 216 ] 20.12. The economic factors which are considered by the State cannot be questioned as arbitrary, capricious or illegal, so long as the same is bonafide, so long as the decision making process is proper and correct, the decision itself cannot be questioned. The State and its instrumentalities would be at liberty to make such decisions after weighing the advantages and disadvantages. [Arun Kumar Agarwal vs Union of India, (2013) 7 SCC 1 ]. 20.13. Technical bids are prepared by technical persons which would ensure objectivity. Insofar as those technical aspects are concerned requiring technical expertise, constitutional Courts ought not to interfere subject again however that the decision made is neither arbitrary, malafide or adopted to favour any particular entity so long as there is no infirmity in the same, this Court ought not to interfere. [Montecarlo Ltd. vs NTPC Ltd. (2016) 15 SCC 272 ] 20.14. The owner or the employer of the project, having authored the tender documents, is the best person to understand and appreciate the requirements. Constitutional courts must defer to such understanding of the owner or the employer unless there is a malafide or perversity established by a person challenging such tender. [Afcons Infrastructure Ltd. Vs Nagpur Metro Rail Corporation Ltd. & Anr. (2016) 16 SCC 818 ] 20.15. The terms and conditions of invitation to tenders are within the domain of the Tender Making Authority and are not open to judicial scrutiny unless they are arbitrary, discriminatory or malafide. Thus, as such, apart from those circumstances, the invitation to tender is not open to judicial scrutiny, the same being in the realm of contract. [Airport Authority of India vs Centre for Aviation Policy, Safety & Research & Ors (2022) SCC OnLine SC 1334] 20.16. Thus, as such, apart from those circumstances, the invitation to tender is not open to judicial scrutiny, the same being in the realm of contract. [Airport Authority of India vs Centre for Aviation Policy, Safety & Research & Ors (2022) SCC OnLine SC 1334] 20.16. Writ Court should not easily interfere in commercial activities just because public sector undertakings or government agencies are involved. Unless substantial public interest was involved or the transaction was malafide. The High Court exercising powers under Article 226/227 of the Constitution is not competent to decide the technical issues in a tender matter. These are best to be left to the employer who has formulated the tender to choose and apply such conditions as the employer believes required in a particular matter. A contract being a commercial transaction, evaluating of tenders and awarding contracts is also an essential commercial function. So long as such evaluation and awardal is in public interest, Courts ought not to by exercise of judicial review interfere in the matter. [Silppi Constructions Contractors vs Union of India, (2020) 16 SCC 489 ] 20.17. Bald allegation that the tender conditions have been drafted to suit a particular bidder, cannot be accepted unless there is sufficient pleadings and evidence to satisfy such an allegation. It is for the Petitioners to have made good the statement by stating as to for whose benefit or which tenderer's benefit the conditions have been tweaked and how such tweaking of conditions would work favourably to such a tenderer. The State and its instrumentalities issuing several thousands of tenders, the bonafide action of the State cannot be questioned in each of those tenders by making reckless and unsubstantiated allegations. [Uflex Ltd. vs State of T.N., (2022) 1 SCC 165 ] 20.18. Courts ought not to permit a petitioner challenging a tender to make a mountain of a molehill on technicalities. The Court would always have to consider whether the decision making process is proper or not. The methodology of requiring a particular document to be submitted in a particular format, the requirement of minimum turnover value of the tender is all within the domain of the employers/tendering authority so also are the wording of the required documents being the Bank guarantee, performance guarantee or the like. The methodology of requiring a particular document to be submitted in a particular format, the requirement of minimum turnover value of the tender is all within the domain of the employers/tendering authority so also are the wording of the required documents being the Bank guarantee, performance guarantee or the like. These are aspects which the employer can fix on the basis of its own requirement taking into consideration the nature of work, the possibility of breach being committed and the manner in which the State and/or its instrumentalities need to be protected on account of breach if any by the successful tenderer which would ultimately enure to the benefit of the general public. So long as the requirements are the same for each and every bidder, one of the bidders cannot attribute discrimination and/or malafides without categorically establishing the said allegations. Merely by contending that there is a change and/or that there is a different process adopted would not suffice for this Court to interfere in tender matters unless the Petitioners were to establish that the same was malafide, arbitrary, irrational and contrary to applicable law and the Constitution. [National High Speed Rail Corpn. Ltd. vs Montecarlo Ltd. and Ors (2022) 6 SCC 401 ] 21. The above being the guidelines laid down by the Hon’ble Apex Court, let me now deal with the points which have been raised in the present matter. 22. Answer to point No.1: Can the change from taluka to the district level be said to be Arbitrary and unreasonable? 22.1. The contention of the counsel for the petitioners is that earlier the tenders were floated talukawise wise and now the same has been floated at the district level on account of which the petitioners would be deprived from participating in the tender process inasmuch as the financial requirements and other requirements to participate in a district level tender is much much higher than that required for the taluka level tender and on that basis, firstly, it is contended that the petitioners would be deprived of participating in the tender. Secondly, it is contended that it is only large business persons who would be eligible to participate in the tender. Thereby, it is contended that the same is not small business friendly. 22.2. Secondly, it is contended that it is only large business persons who would be eligible to participate in the tender. Thereby, it is contended that the same is not small business friendly. 22.2. In this regard, Sri Vijaya Kumar, learned Additional Advocate General had submitted that over the last several years, there being several allegations and complaints as regards the quality of food grains and foodstuff supplied, the tenders having floated for the purpose of providing food to students in government schools, the interest of the said children is being adversely affected by poor quality of food supply and the State, despite its best efforts, has not been able to control the quality at the taluka level. There being hundreds of talukas within the State of Karnataka. The supply being so distributed at taluka level, no proper monitoring could take place and it is in that background, revised guidelines have been issued by the State calling for the tenders at the district level. 22.3. Having heard both the counsel and perused the papers, more particularly, the Government Order in relation thereto, it is seen that from now on, District Level Food Commodities Purchase Committee has been set up, which will take care of the purchase of the entire district. There is also a District Level Scrutiny Committee, which will be set up, which will scrutinize all the bids received at the district level, prepare a comparative statement of the technically qualified or disqualified bidders and ensure the quality of food supplied by the bidders. More importantly, a District Level Food Quality Inspection and Monitoring committee has been set up, which will exercise full supervision over the quality of food supplies made to the hostels in the district. The said committee shall be entitled to check random samples of food material by collecting samples thereof and forwarding the same to the NABL Accredited Laboratories. Such random selection and checks will be done every three months and necessary action to be taken on the basis of the lab test report received by the Monitoring Committee. Apart there from, there are several other changes which have been brought about, in the manner and methodology of calling for tenders. Though there was a practice earlier for calling for tender at the taluka level, it is faced with the several problems where the same has been changed to district level. Apart there from, there are several other changes which have been brought about, in the manner and methodology of calling for tenders. Though there was a practice earlier for calling for tender at the taluka level, it is faced with the several problems where the same has been changed to district level. This is a policy decision which is being taken by the State, taking into account the several inadequacies of the Taluka Level Tendering System and the advantages of the District Level Tendering System. 22.4. Merely because some of the tenderers who are petitioners before this Court would get disqualified would not make the tender arbitrary or unreasonable. Karnataka having 31 districts, there will be 31 tenders which would be floated and the supply would be monitored at the district level. The tender documentation and the conditions being equally applicable to all the districts, there is no discrimination resulting out of the said tender documentation since the terms and conditions would be common for each and every district. 22.5. The reason for shifting from taluka level to the district level having been explained hereinabove, I do not find the same to be arbitrary or unreasonable more so taking into account the policy decision made by the State. Thus, I answer Point No.1 by holding that a change from taluka level to district level tendering system is neither arbitrary nor unreasonable. 23. Answer to Point No.2: Can the change of period of the Tender from 1 year to 2 years be said to be arbitrary and unreasonable? 23.1. The contention of the petitioners is that earlier the tender was for a period of one year. Now that it has been made for two years. The concomitant requirements of bank guarantee, annual turnover, etc., have also been increased. Thus, making this increase, also arbitrary and unreasonable. 23.2. A tendering process normally takes some time and many a time, these tenders are subject matter of litigation before Constitutional Courts. During the time that a tender is in Court, the existing successful tenderer, many times engineers litigation to continue to render services under the contract and if so successful, many a time the next one year period would also be completed, thus, requiring a fresh tender to be issued. The above methodology could be resorted to once again, thus enabling the once-successful tenderer to continue for a long period of time. 23.3. The above methodology could be resorted to once again, thus enabling the once-successful tenderer to continue for a long period of time. 23.3. The increase in the time period of tender per se would be in the benefit of the successful tenderer inasmuch as the successful tenderer would get two years time to recover any expenses or investment made by the tenderer and as such, taking into consideration length and duration of the tender, the participants could also furnish their bids taking into account the income that they may earn over a period of time. 23.4. The above being one of the advantages, there could be several disadvantages also. Be that as it may, the increase of the term of the tender from one year to two years is also a policy decision taken by the State on the basis of expert reports. 23.5. Having looked at it legally and considering the same on the basis of the submission which has been made, I am of the considered opinion and I answer point No.2 by holding that the increase of the tender period from one year to two years is neither arbitrary nor unreasonable. The same is based on technical inputs received by the expert committee. 24. Answer to Point No.3: Whether the change in the methodology of the tender can be said to be manifestly arbitrary? 24.1. Much of this has been dealt with in answer to Point No.1 and Point No.2, that is, as regards the area of operation and the term of operation. Apart from these two changes, there are other changes which have been brought about in terms of selection and monitoring. For any action of the State to be manifestly arbitrary, it would be required for the petitioners to establish that the process and procedure which has been followed and the net effect of the action on part of the State is so unreasonable, so improbable and so unjust that it is apparent on the face of the said tender document, when it can be said to be manifestly arbitrary. 24.2. 24.2. In the present tender, after having assessed the matter from all angles, I am of the considered opinion that the change in methodology etc., has been made taking into account the changing circumstances and the requirement to provide the best quality food articles to the students at the schools and the hostels run by the State. Thus, this methodology which has been adopted by the State cannot be said to be manifestly arbitrary as contended by the petitioners. 25. Answer to Point No.4: Whether the conditions have been introduced so as to exclude the petitioners and favour any other tenderer, thereby violating Article 14 of the Constitution of India? 25.1. The contention of the petitioners is that the increase in the area of operation, the increase in the period of operation has also resulted in the requirement for the bidder to furnish annual financial turnover at twice the estimated cost of the quantity. The submission in this regard is that petitioners are small traders would not be able to satisfy the requirement of twice the value of the tender and as such would not be able to participate in the tender, resulting in their exclusion which would be violative of Article 14 of the Constitution. 25.2. The mere fact that somebody would get excluded would not amount to discrimination in terms of Article 14 of the Constitution so long as the qualifications which are prescribed can be met by a large number of people or entities and/or that the qualification which has been prescribed is not to favour any particular tenderer or group of tenderers. 25.3. In the present case, the contention is that because there is a requirement to have a higher turnover, the petitioners would not qualify. Turnover by itself cannot result in any discrimination. Inasmuch as considering the value of the contracts in the present manner, there would be several persons who would qualify the aspect of annual financial turnover, the same in my considered opinion has not been introduced to exclude the petitioners. 25.4. There being no proof or documents placed on record to indicate that this condition is made to favour anybody, more so when the tender is yet to be issued, I am of the considered opinion that changed tender conditions does not violate Article 14 of the Constitution. 26. 25.4. There being no proof or documents placed on record to indicate that this condition is made to favour anybody, more so when the tender is yet to be issued, I am of the considered opinion that changed tender conditions does not violate Article 14 of the Constitution. 26. Answer to Point No.5: Whether the tender can be said to be violating Section 6C of The Karnataka Transparency In Public Procurements Act, 1999, on account of the tender favouring bigger businesses, thereby impinging on the rights of the petitioners who are Micro, Small & Medium Enterprises (MSMEs)? AND 27. Answer to Point No.6: Whether the tender is bad for not providing 15% price preference available for MSME’s? 27.1. Section 6(a) of the KTPP Act is reproduced hereunder for easy reference: 6C. Preferences to Micro & Small Enterprises: To encourage Micro and Small Enterprises, preferences may be given to them in such manner subject to such conditions as may be prescribed by the Government. Explanation:-"For the purpose of this Section, Micro and Small Enterprises shall have the same meaning as defined in the Micro, Small and Medium Enterprises Development Act, 2006 (Central Act 27 of 2006 )” 27.2. The contention of the petitioners is that due to the increase in the area of the tender and the period of tender, small enterprises like the petitioners would not be eligible to participate in the tender. This contention of the petitioners is assuaged by the learned Additional Advocate General by submitting that whatever the benefits are available to the MSMEs under any tender would be made available to any petitioner who qualifies the said requirement. Thus, such benefits being made available, there will be no violation of Section 6(c) of the KTPP Act. 27.3. This submission answers the grievance of the petitioners inasmuch as any benefit that they can derive on being a micro, small or a medium enterprise would be made available by the State to such qualifying tenderer. In that view of the matter, I do not find that there is a violation of Section 6(c) of the KTPP Act as alleged or otherwise. 27.4. Insofar as price preference is concerned, the submission of Sri.Vijaya Kumar, learned Additional Advocate General is that even this price preference will be provided to entities which qualify to be MSMEs. In that view of the matter, I do not find that there is a violation of Section 6(c) of the KTPP Act as alleged or otherwise. 27.4. Insofar as price preference is concerned, the submission of Sri.Vijaya Kumar, learned Additional Advocate General is that even this price preference will be provided to entities which qualify to be MSMEs. In that view of the matter, the requirement of the KTPP Act having complied with, in the event of the petitioners qualifying to be MSMEs, they would be entitled to all benefits under the MSME Act. As such, no fault can be found to the tender on this account. 28. Answer to Point No.7: Is the tender violative of the Standard terms of Contract? 28.1. The contention of the petitioners is that the condition of the tender are violative of the standard terms of the contract which have been fixed by High-Level Committee. 28.2. This contention has been taken up in respect to Clause (ii) of the eligibility criteria relating to average annual financial turnover and Clause (iii) relating to the past track record of the tenderer. The average annual financial turnover is now prescribed to be twice the estimated cost of the quantity during the preceding three financial years, whereas under the standard terms of contract, the qualification which has been fixed was that in last five years period, should have achieved in at least two financial years, an annual financial turnover of an amount not less than the estimated cost under the contract for works costing up to 100 lakhs and for works more than 100 lakhs, the tenderer should have in the last five years achieved in at least two financial years a minimum financial turnover of not less than two times the estimated annual payments under the contract. 28.3. The submission of Sri.Vijaya Kumar, learned Additional Advocate General, is that in most of the cases, the contract value will be more than 100 lakhs per district. Thus, he submits that the condition which has been imposed does not in any material manner negate the standard terms of contract/standard tender document. 28.4. 28.3. The submission of Sri.Vijaya Kumar, learned Additional Advocate General, is that in most of the cases, the contract value will be more than 100 lakhs per district. Thus, he submits that the condition which has been imposed does not in any material manner negate the standard terms of contract/standard tender document. 28.4. Having perused both the clauses, the difference that is seen is that under the standard tender documents, it is in three out of the last five years that the requirement has to be met whereas in the present tender, it has been specifically fixed for last three years. I do not therefore find any violation of the standard tender documents. Inasmuch as, the amount being twice the estimated cost of the contract, the requirement being established for last three financial years does not in any manner materially differ from the term in the standard tender document. 28.5. Insofar as the past track record is concerned, under the present contract, the requirement is to have supplied food items to any of the State, Central Government Departments/ Institutions/organizations in India, at least 80% of the requirement of the quantity mentioned in the tender document to have been supplied in any one of the last three financial years. As per the standard tender documents, what is required is for execution of works in any one year, the minimum quantity of work of 80% of the annual requirement for works costing up to Rs.100 lakhs and insofar as works costing more than Rs.100 lakhs should have executed in any one financial year, the minimum quantity of the work of which is usually 80% of the peak annual rate. 28.6. The qualifications which is now prescribed under the present contract is a little more stringent than that under the standard tender documents inasmuch as though the quantity of work required to be done is same at 80%, the period under the standard contract is one year out of last five years, whereas in the present tender it is one year out of the last three financial years. The same does not in my considered opinion create any injustice or favour any particular tenderer. 28.7. The petitioners having failed to establish any such favoritism resorted to by the State. The same does not in my considered opinion create any injustice or favour any particular tenderer. 28.7. The petitioners having failed to establish any such favoritism resorted to by the State. Thus, I am of the considered opinion that the present tender is not in violation of the Standard Terms of Contract fixed by the State as a guiding factor. 29. Answer to Point No.8: Whether there is any legal infirmity in the nature of the tender or its process requiring interference at the hands of this Court? 29.1. In view of my answers to Points No.1 to 7 above, the actions taken by the State and its authorities being proper and correct, there is no legal infirmity in the nature of the tender or the process requiring interference at the hands of this Court. 29.2. However, taking into consideration the submission of the learned Additional Advocate General that an IT portal would be set up wherein the details of all the successful tenderers with the details of supply being made by them enabling the students or anyone else to lodge their online complaints if any against such supply, the action taken by the concerned authorities as regards the said complaints, the details of the periodic random inspection carried out by the concerned authorities with the report thereof being uploaded on to the IT portal and in the event of there being any violation, the action taken in respect of such violation, the report of the NABL Accredited Laboratories etc., being web hosted on the portal of the respondents, I am of the considered opinion that this being one of the basis for rejecting the above petitions. It is required for the respondents to place on record the details of the portal created and the details of the upload made and submit a detailed action taken within a period of four weeks from today. 30. Answer to Point No.9: What Order? 30.1. In view of above discussion, I pass the following: ORDER i) No grounds having been made out, the above Writ Petitions are dismissed. ii) Though the above petitions are dismissed, re-list on 30th January 2025, for the purpose of placing on record the detailed action taken report.