MEP Infrastructure Developers Pvt. Ltd. vs State of West Bengal and Others

Dipankar Datta, J.—The pleadings that the respective parties have filed reveal a printing error in the form of offer submitted by the petitioner costing it a fortune and securing windfall gains for the respondent 9. While it is the contention of the petitioner that the printing error was insignificant and thus it ought to have been given an opportunity to correct it, or at least approached for ascertaining whether it would abide by the total bid price quoted by it, the official respondents and the respondent 9 are emphatic in their stand that the terms of the tender notice were scrupulously followed and there has been no arbitrariness in the impugned State action, thereby warranting dismissal of the writ petition. To appreciate the arguments made by learned Counsel for the respective parties, it would be necessary to note the factual scenario and then to decide which of the rival claims deserves acceptance.

The Hooghly River Bridge Commissioners (hereafter the HRBC), respondent 2, is a body created by the Hooghly River Bridge Act, 1969 and vested with powers to carry out the provisions thereof. For the purpose of collection of toll from vehicles utilising Vidyasagar Setu to cross the river Hooghly, the HRBC had issued tender notice for appointment of a toll collection agent in 2011. This was followed by a second tender notice dated April 9, 2012. Since only two parties had expressed interest, the Chairman of the HRBC (the respondent 4) directed issuance of re-tender notice. Notice dated May 21, 2012 was issued. The HRBC was of the view that it would not be feasible to proceed further, since the highest bid that emerged was below the reserve price. Although the petitioner has alleged that the respondent 9 was not qualified in terms thereof to participate in the process and, thus, had been disqualified at the technical bid stage, and the HRBC with a view to favour it had abandoned the earlier processes and initiated fresh process, being the fourth in succession (vide notice inviting tender dated July 10, 2012) to afford it an opportunity to participate by relaxing the terms and conditions incorporated in the earlier notices, no opinion is expressed since I am of the view that it is not necessary for a decision on this writ petition.

Three parties viz. the petitioner, the respondent 9 and the respondent 10 participated in the tender process initiated by the third notice. Those intending to participate in the process were, inter alia, obliged in terms of clause 11.0 under the heading "C. PREPARATION OF OFFER" to comply with the following condition:

OFFER PRICES: The offerer shall quote his offer, in the form of offer, as a lumpsum highest bid price for the entire contract period to Hooghly River Bridge Commissioners in Volume-I, Section 3B.

(Underlining for emphasis by me)

Clause 11.2 required that the "(O)ffer shall be quoted in words as well as in figures.

Clauses 23.0 and 26.0 under "E. OFFER OPENING AND EVALUATION", which are relevant for the purpose of a decision on this writ petition, read as follows:

23.0 CLARIFICATION OF OFFER: To assist in examination and evaluation of offers, the Employer may ask the offerer individually for clarification of their offer including breakup of costs, reasons in case of very high/very low offer etc. The request and the response thereof shall be in writing.

26.0 CORRECTION OF ERRORS: If there is any discrepancy between the offer quoted in figures and in words, the offer in words will be treated as offer.

Clauses 30.1 and 31.0 under "F. AWARD CRITERIA" require to be noted and are, therefore, reproduced hereinbelow:

30.1 ISSUE OF (LOI) LETTER OF INTENT: Prior to the expiration of the offer validity period or any such extended validity period, the Employer shall notify the successful offerer in writing that his offer has been accepted. This letter (hereinafter and in conditions of contract called "Letter of Intent") shall be issued to the successful offerer to furnish the upfront payment of the first year''s bid price plus Tax collection at Source (T.C.S.) as applicable and Bank Guarantee for balance four years bid price valid for 63 months within 15 days of the date of issue of LOI.

31.0 ISSUE OF (LOA) LETTER OF ACCEPTANCE: After fulfilment of criteria as specified in LOI and signing of the agreement, the Employer shall issue the Letter of Acceptance. The LOA shall be the authority for the contractor to take over the entire property in connection with Toll Plaza at Vidyasagar Setu as well as to collect toll collection including maintenance, upgradation etc. Period of handing over and taking over of Toll Plaza with all allied equipments and date of commencement of toll collection shall be mentioned in that LOA.

The offer had to be made in a form, relevant portion whereof reads as follows:

Sir,

Pursuant to invitation to offer bearing No..... dt...... issued by Director (Pi & Dn), HRBC, I/We hereby submit my/our offer for being appointed as your Contractor for a period of 60 months from the date of commencement of Toll Collection for collection of toll at Vidyasagar Setu Toll Plaza at approved rates on all specified vehicles and trailers etc. drawn by such vehicles excluding vehicles holding free smart cards issued by HRBC/State Govt. passing through the Toll Plaza.

We offer a sum of Rs.....(Rupess.... only) by way of our total bid price as lump sum for the entire contract period of 60 (sixty) months making a lump sum upfront payment of 1st year''s installment amounting to Rs..... (Rupess.... only) being 1/5th of total lump sum offer in the form of Demand Draft as stated in the tender document along with Bank Guarantee towards payment of installments for the balance four years'' being 4/5th of the total bid price valid for 63 months.

*** (Underlining for emphasis by me)

The tender documents further obliged the successful bidder to enter into an agreement with the Vice-Chairman of the HRBC. Two of the clauses of such agreement read as under:

AND WHEREAS the offer made by the contractor for collection of toll at the said Toll Plaza at Vidyasagar Setu between Kolkata and Howrah for a period of sixty months to be reckoned from the date of commencement of toll collection as will be mentioned in the LOA to be issued by the Employer to collect the toll at the said toil plaza on terms and conditions hereinafter referred to. AND WHEREAS it has been agreed that the Contractor shall deposit through Demand Draft a sum of Rs........ for collection of toll charges as the first installment plus T.C.S. as applicable and pay @ Rs...........at the interval of 12 months and has also agreed to furnish an unconditional and irrevocable Bank Guarantee of Rs........... valid for 63 months from the date of commencement of toll collection and the above said sums as will be deposited by the Contractor will not carry any interest.

(Underlining for emphasis by me)

The letter of acceptance to the tenderer signifying acceptance of offer had to be given in a particular form. Such form reads as follows:

Sub: Letter of Acceptance of your offer for ''Collection of toll at Vidyasagar Setu, Kolkata including handling, operation, maintenance, renewing and renovation, upgrading of existing electronically operated Toll Collection system as per requirement.

Ref:

Dear Sir,

This is to inform you that your above mentioned offer for appointment as contractor for the work of collection of toll at approved rates on all specified vehicles and trailers drawn by such vehicles passing over the Vidyasagar Setu for a period of 60 months from the date of commencement of toll collection, has been accepted by me on the terms and conditions of contract forming part of the offer document submitted by you, for Rs..... (Rupees..... only) which is your lump sum offer for entire 5 (five) years period of contract plus T.C.S. as applicable.

You are now authorized to take over the entire property of Toll Plaza including all electronics and other equipments, already installed as indicated in the list as in Sub-Clause 16.9.1.1 in Instructions to Offerers commencing from..... (date) and completing by.....(date) and then commence toll collection with your men and other supports from.... (date) at 00 hrs. (midnight).

(Underlining for emphasis by me)

The petitioner offered an amount of Rs. 243 crore by way of total bid price as lump sum for the entire contract period of 60 (sixty) months. The said amount was correctly expressed in figures as well as in words. As noticed from the form of offer extracted supra, 1/5th of the total bid price/lump sum offer would constitute lump sum upfront payment of first year''s instalment and had to be paid by the selectee. Such amount, constituting 1/5th of the total bid price/lump sum offer, was required to be mentioned in the form of offer. While the petitioner correctly described 1/5th of Rs. 243 crore i.e. Rs. 48,60,00,000/-, in figures, an error was committed by it in expressing the said amount in words. It was printed in the form of offer as "Rupees forty six crores and sixty lakhs only". Insofar as the respondents 9 and 10 are concerned, they had offered Rs. 236 crore 29 lakh 50 thousand and Rs. 2,16 crore respectively as their total bid price/lump sum offer and expressed the same correctly both in words and figures.

The committee constituted by the HRBC for evaluation of financial proposal comprising five members (hereafter the committee) upon consideration of the offers of the respective parties on August 29, 2012 arrived at the following decision:

MEP Infrastructure Developers Pvt. Ltd. (1/3) has quoted Rs. 46.60 cr. in words and Rs. 48.60 cr. in figures as the upfront payment of the 1st year''s installment being 1/5th of the total lump sum offer.

Clause 26.0 of Vol I-Sec 2: Instructions to offers of the tender documents reads as ''Correction of Errors: If there is any discrepancy between the offer quoted in figures and in words, the offer in words will be treated as offer.''

In view of the aforesaid clause we have to read the offer of MEP Infrastructure Developers Pvt. Ltd. (1/3) as 46.60 cr. being 1/5th of the total lump sum offer and in that case the total lump sum bid price comes to Rs. 233.0 cr. (Rupees two hundred thirty three crore only). As such there is discrepancy in the Financial Offer and hence we are not in a position to accept the financial offer of MEP Infrastructure Developers Pvt Ltd. (1/3).

Out of remaining two bidders, Konark Infrastructure Ltd. (3/3) offered higher bid price than SMS Infrastructure Limited (2/3) i.e. Rs. 236,29,50,000/- (Rupees two hundred thirty six crore twenty nine lakh fifty thousand only) by way of our total bid price as lump sum for the entire contract period of 60 (sixty) months making a lump sum up front of 1st year''s installment amounting to Rs. 47,25,90.000/- (Rupees forty seven crores twenty five lakhs ninety thousand only) being 1/5th of total lump sum offer.

The aforesaid decision was placed before the Vice-Chairman of the HRBC (the respondent 5). He recorded that further action is being taken. Accordingly, vide his Memo dated HRBC/11T- 18/06/VC/206 dated August 29, 2012, the respondent 5 informed the petitioner that due to the discrepancy in its financial offer, the HRBC was not in a position to accept the same.

On the same day, vide Memo dated HRBC/11T-18/06/VC/204, the respondent 5 communicated to the respondent 9 as follows:

Sub: Toll Collection Tender of Vidyasagar Setu.

Dear Sirs,

in connection with the above tender the financial proposals submitted by you and other tenderers were opened on 28.08.2012 in presence of your representatives. The financial offer quoted by all the 3 offerers were declared after the opening.

The offers quoted by the 3 agencies alongwith tender documents were examined and discussed with the Hon''ble Chairman, HRBC. Before taking final decision in regard to financial offers it has been decided to request you whether you are agreeable to increase your value of offer to Rs. 243.00 cr. for 5 (five) years making upfront fee of Rs. 48.60 cr. Per annum being 1/5th of total fees for 5 years period.

if you kindly agree please do confirm in writing by return of Post.

On the same day, a communication signed by a director of the respondent 9 reached the respondent 4. Substantial portion of the contents of such communication dated August 29, 2012 are printed whereas the rest is in the hand writing of some individual. It is set out hereinbelow:

Sub: Your letter hearing reference No. HRBC/11T-18/6/VC/204 dt. 29.08.12 regarding raising of our offer to Rs. 48.600 crores per annum.

Dear Sir,

This is with reference to your above said letter, we would like to inform you that we are raising our offer to Rs. 48.600 crores per annum & Rs. 243.000 crores for 5 (five) years for collection of toll at Vidyasagar Setu, HRBC Bridge, Kolkata.

Further we are interested in running the toll collection on temporary basis till the finalisation of our abovementioned tender at the proportionate rates of Rs. 48.600 crores per annum, on monthly upfront basis Kindly consider our request cum proposal with reference.

The words and figures in the aforesaid extract, which have been printed in bold font, are to highlight that the same are hand-written.

Since the respondent 10 had been previously entrusted with the work of collection of toll and the extended period was due to expire on August 31, 2012, the respondent 5 vide Memo No. HRBC/11T-18/06/VC/209 dated August 31, 2009 requested it to hand over the entire property of existing electronically operated toll collection system in working condition at Vidyasagar Setu Toll Plaza to the respondent 9, who had been authorized to take over the property on behalf of the HRBC. By a further letter of even date bearing Memo No. HRBC/18/06/VC/210, the respondent 9 was conveyed the decision of acceptance of its financial offer of Rs. 243 crore for 5 (five) years i.e. Rs. 48.60 crore upfront payment per year from midnight of August 31, September 1, 2012 to midnight of September 15-16, 2012. The respondent 9 was allotted the work of toll collection at Vidyasagar Setu Toll Plaza at existing rates from the notified vehicles purely on temporary basis on condition of making deposit of an amount of Rs. 2,02,50,000/- plus 2% T.C.S. as upfront payment for 15 days.

It was at this stage, on September 3, 2012, that this writ petition was presented before this Court praying for, inter alia, order to quash Memo No. HRBC/18/06/VC/206 dated August 29, 2012, Annexure P-4 thereto, whereby the petitioner''s financial offer was not accepted.

The writ petition was admitted on September 4, 2012. The parties were called upon to exchange affidavits and thereafter the writ petition has been finally heard.

Mr. Kapoor, learned senior Counsel appearing for the petitioner contended that the action of the HRBC in declining to accept the financial offer of the petitioner because of an insignificant printing error smacks of arbitrariness and unreasonableness. Reference was made by him to the terms and conditions of the tender notice as well as the correspondence exchanged by and between the HRBC and the respondent 9 and it was submitted that the sequence of events unfurling from the pleadings and the documents on record would reflect nepotism and favouritism practised by the respondents 2 to 8 to anyhow select the respondent 9 for the purpose of collection of toll and to allot the work to him on temporary basis, which is a clear departure from the terms and conditions of the tender notice, at the expense of the petitioner.

In support of his submissions, Mr. Kapoor relied on the following decisions of the Supreme Court, viz.

i) Ramana Dayaram Shetty Vs. International Airport Authority of India and Others,

ii) Ram and Shyam Company Vs. State of Haryana and Others,

iii) Harminder Singh Arora Vs. Union of India (UOI) and Others, and

iv) Tata Cellular Vs. Union of India,

Mr. Sengupta, learned senior Counsel opposed the writ petition on, behalf of the respondents 2 to 8.

First, he referred to the prayers in the writ petition and submitted that without amending the writ petition, the petitioner ought not to be allowed to raise a grievance in respect of the correspondence exchanged by and between the respondents 2 to 8 and the respondent 9, and the ultimate appointment of the latter for collection of toll. It was further urged that the petitioner, by way of amendment, ought to incorporate suitable pleadings as well as a fresh prayer if it intended to have the appointment made in favour of the respondent 9 cancelled. Without challenging such appointment, the Court ought to be loath in granting relief.

Secondly, it was submitted by him that the financial offer envisaged in the tender documents comprises of the total bid price and the upfront payment for the first year as well as for the succeeding years and has to be treated as a composite whole. Emphasis was laid on clause 26. According to him, clause 26 would have no meaning if the respondents 2 to 8 were to take into account the amount offered by the petitioner in words. Reference was made to the decision of the committee on August 28, 2012 and contents of paragraph 4(j) of the counter affidavit of the respondents 2 to 8 to show how the petitioner''s offer was less than that of the respondent 9. He urged that strict adherence to the tender terms and conditions is the best policy, since that would rule out any charge of discrimination and the respondents 2 to 8 had simply done what was required in the circumstances.

Thirdly, it was his specific contention that sufficient care had been taken to safeguard the interest of the State. He argued that in the event the petitioner had been selected by the respondents 2 to 8 on the basis of Rs. 243 crore being its total bid price/lump sum offer, but later on the petitioner were to resile and contend that Rs. 46 crore 60 lakh was its upfront lump sum offer for the first year''s instalment and it were to insist for payment for the subsequent years, reckoning the quantum of upfront lump sum offer for the 1st year''s instalment, the State would in the long run be the loser. It was his further submission that the respondents 2 to 8 being the guardians of the finances of the State had ensured that the State does not stand to lose by reason of selection of the petitioner. Accordingly, the respondent 9 was called upon to enhance its offer to Rs. 243 crore and only upon receiving its confirmation that the respondent 5 proceeded to issue memo dated August 29, 2012 in its favour.

By referring to the decisions in Glodyne Technoserve Ltd. Vs. State of M.P. and Others, , and West Bengal State Electricity Board Vs. Patel Engineering Co. Ltd. and Others, he contended that price advantage is not always a relevant consideration and the Supreme Court did not hesitate to uphold rejection of offers of bidders, which were found to be lower than that accepted by the authority inviting tenders by several crore on the ground that the lowest bidders had not complied with the terms and conditions of the notices inviting tenders. That there is a difference of more than 6 crore in the total bid price offered by the petitioner and the respondent 9, according to him, ought not to weigh with the Court since a party aspiring for selection must comply with the requirements of the notice inviting tender.

Fourthly, he emphasised that a distinction had to be made between an essential condition and a non-essential condition. While strict adherence to a non-essential condition may not always be demanded and it is the discretion of the authority inviting tenders to choose its course of action, he urged that an essential condition must be scrupulously adhered to on pain of invalidation of an act in violation of such essential condition. Since parts of the financial offer i.e. total quantum and upfront, could not be segregated, the financial offer of a party is the most essential ingredient of its tender and even if the decision of the respondents appears to be not sound, that is not a ground for judicial review. Paragraph 90 of the decision in Tata Cellular (supra) was referred to by him in this connection along with the decision in Kanhaiya Lal Agrawal Vs. Union of India (UOI) and Others,

In the passing, it was also hinted that the Court would have interdicted had the respondents 2 to 8 after obtaining clarification from the petitioner on its offer awarded the contract to it and the respondent 9, considering itself aggrieved by the selection of the petitioner, had approached the Court.

Finally, it was his contention that the terms and conditions of the tender notice were required to be rigidly and strictly adhered to, since high stakes were involved. The petitioner was required to be diligent and ought to have submitted its offer upon exercise of meticulous care and caution. It had 7 (seven) days'' time to detect the mistake in its offer (between the date the offer was submitted and the day on which the offer was considered). The approach was so casual that the mistake went undetected. Having committed a mistake, it is the petitioner who is to solely shoulder the blame without pointing fingers at the respondents 2 to 8. Since the petitioner appears not to have exercised the care and caution the situation demanded, the actions of the respondents 2 to 8 must be held to be above board. Reliance in this regard was placed on the decisions in Siemens Public Communication Networks Private Limited & Anr. v. Union of India & Ors., (2008) 16 SCC 215, and BECIL Vs. Arraycom India Ltd. and Others,

In support of the contention that the respondents 2 to 8 had stuck to the rules and, therefore, there was no illegality in selecting the respondent 9 for collection of toll, Mr. Sengupta referred to the decisions cited by Mr. Kapoor. He also urged that there being no hint of arbitrariness and/or unreasonableness in the action of the respondents 2 to 8, the writ petition was liable to be dismissed.

Mr. Mukherjee, learned senior Counsel representing the respondent 9 also contended that the action of the respondents 2 to 8 in selecting the respondent 9 is not vitiated by any illegality or arbitrariness. He referred to the affidavit-in-reply filed by the petitioner while dealing with the affidavit-in-opposition of the respondent 9. There, the petitioner had contended that "lump sum specified upfront payment" was a separate aspect altogether having nothing to do with the offer price. According to Mr. Mukherjee, the petitioner proceeded on a misconception of the tender terms and conditions since the form of offer clearly provided that the total bid price as well as the upfront payment would constitute the offer. There being no favouritism or mala fides in the appointment of the respondent 9, he submitted that it is not within the permissible limits of interference for a Court of law. In support thereof, reliance was placed on the decision in Asia Foundation and Construction Ltd. Vs. Trafalgar House Construction (I) Ltd. and Others, The decisions in Raunaq International Limited Vs. I.V.R. Construction Ltd. and Others, and Air India Ltd. Vs. Cochin Int., Airport Ltd. and Others, , were next referred to by him to remind the Court the commercial considerations, which are of paramount importance for award of a contract. In particular, it was submitted that interference of the Court in commercial matters must be in sound exercise of discretion and only in furtherance of public interest, and not merely on the making out of a legal point. Based on such submissions, he too prayed for dismissal of the writ petition.

The State (the respondent 1) was represented by Mr. Sushobhan Sen Gupta. While adopting the submissions of Mr. Sengupta and Mr. Mukherjee, he invited the attention of the Court to the decision in Heinz India Pvt. Ltd. and Another Vs. State of U.P. and Others, where it has been held that judicial review does not allow the Court of review to examine evidence with a view to forming its own opinion about substantial merits of the case.

At this juncture, when arguments had been substantially heard, the petitioner and the respondent 9 were called upon to inform the Court as to whether they were prepared to enhance their total bid price or not. The parties prayed for and were granted accommodation to revert with necessary instructions on the following day.

While Mr. Banerjee, learned Government Pleader submitted that the State welcomes an arrangement whereby higher offers could be obtained, Mr. Sengupta preferred to maintain silence. Mr. Dastoor, learned Advocate representing the petitioner, submitted that it was willing to enhance its offer. However, Mr. Mukherjee submitted that the respondent 9 having enhanced the offer by more than Rs. 6.5 crore in terms of the request of the respondents 2 to 8, any further increase would not be viable for it. The arrangement that the Court intended to work out having failed, an order was recorded to that effect and it was observed therein that the writ petition would be decided on merits.

In reply, Mr. Kapoor submitted that on the date the writ petition was presented, the petitioner was not aware of the appointment of the respondent 9. According to him, the facts and circumstances bear ample testimony of the haste with which the respondent 9 came to be appointed, and that too on temporary basis, without the approval of the State Government. He contended that in any event, the petitioner having prayed for an order to quash the memo dated August 29, 2012 (Annexure P-4 to the writ petition) and if the Court were to grant such prayer, cancellation of the appointment of the respondent 9 ought to follow as a matter of course. Next, he referred to the letter of acceptance and submitted that since the same does not refer to the lump sum upfront payment towards 1st year''s instalment but refers only to the lump sum offer for entire 5 (five) years of the contract plus T.C.S. as applicable, the respondents 2 to 8 committed gross illegality. He further referred to the maxim res ipsa loquitur to urge that arbitrariness and unreasonableness is so grossly manifest that the same cannot be countenanced. According to him, facilities that have been extended to the respondent 9 were not extended to others. It was also urged that the respondent 9 is under no obligation to even make upfront payment of 1/5th of the total bid price offered by it. It has not furnished any bank guarantee for the remaining period of the contract and has been collecting toll and paying certain amounts to the HRBC, which is contrary to the tender terms. Since the respondents 2 to 8 have acted on extraneous considerations, all the grounds on which judicial review powers may be exercised are available in the present case. He, accordingly, prayed for orders as claimed in the writ petition.

I have heard the parties at length. The point that arises for a decision is whether the petitioner has received a raw deal from the respondents 2 to 8 or not. Should the answer thereto be in the affirmative, the other point that would exercise the consideration of the Court is the nature of relief that ought to follow.

The petitioner has been told off at the gates by the HRBC. The Supreme Court in Noble Resources Ltd. Vs. State of Orissa and Another, observed as follows:

It is trite that if an action on the part of the State is violative of the equality clause contained in Article 14 of the Constitution of India, a writ petition would be maintainable even in the contractual field. A distinction indisputably must be made between a matter which is at the threshold of a contract and a breach of contract: whereas in the former the Court''s scrutiny would be more intrusive, in the latter the Court may not ordinarily exercise its discretionary jurisdiction of Judicial review, unless it is found to be violative of Article 14 of the Constitution. While exercising contractual powers also, the government bodies may be subjected to judicial review in order to prevent arbitrariness or favouritism on their part. Indisputably, inherent limitations exist, but it would not be correct to opine that under no circumstances a writ will lie only because it involves a contractual matter.

(Underlining for emphasis by me)

An intrusive judicial review, in respect of matters at the threshold of a contract, would thus be permissible bearing in mind the self-imposed restrictions.

It appears on a conspectus of the decisions cited at the bar that the parameters of exercise of the power of judicial review in respect of commercial contracts entered into by a public authority are no longer res Integra, The law has been succinctly laid down in the decision in Jagdish Mandal Vs. State of Orissa and Others, Hon''ble R.V. Raveendran, J. (as His Lordship then was) speaking for the bench observed as follows:

*** 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. ****

(Underlining for emphasis by me)

In Association of Registration Plates Vs. Union of India (UOI) and Others, the Supreme Court held:

43.... 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.

(Underlining for emphasis by me)

In B.S.N. Joshi and Sons Ltd. Vs. Nair Coal Services Ltd. and Others, it was observed by the Supreme Court that:

It may be true that a contract need not be given to the lowest tenderer but it is equally true that the employer is the best judge therefor; the same ordinarily being within its domain, Court''s interference in such matter should be minimal. The High Court''s jurisdiction in such matters being limited in a case of this nature, 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.

(Underlining for emphasis by me)

Reference to the aforesaid two decisions of the Supreme Court is found in Jagdish Mandal (supra). These two decisions as well as those cited at the Bar would guide the Court to tread the path of arriving at a just decision as torchlight.

The pre-requisite for intervention in a matter relating to selection of a party for entrustment of work by the State is that the impugned action ought to appear to be arbitrary or unreasonable or irrational, on the face of the record, and one that would not promote public interest. Whenever a public authority initiates process for awarding a contract, a fair and transparent method for making selections is to be adopted to ensure that fair opportunity of competition is extended to all the eligible bidders. If a rational method is not adopted and any attempt is made to scuttle the claim of worthy applications, such action has to be interdicted by the Court to set things right.

Keeping in mind the above parameters, the Court has to proceed to decide whether the actions of the respondents 2 to 8 suffer from arbitrariness/unreasonableness/irrationality/unfairness or not. However, since no argument has been advanced on the doctrine of proportionality, which in my view could have been invoked successfully by the petitioner here, its applicability is not considered.

I propose to consider Mr. Sengupta''s first contention, first. It is well settled that the decision of a Court of law in respect of the lis between the parties that arise must be rendered based on the pleadings that are seen and the arguments that are heard by it. The judicial process leading to the final judgment must afford opportunity to the party, whether it is the plaintiff/petitioner or the defendant/respondent, to meet the case of his adversary. In essence, it is an insistence that natural justice be complied with. Making out a third case, not traceable in the pleadings and deciding the matter one way or the other is contrary to judicial discipline and propriety. The party, against whom the decision ultimately operates, is thus deprived of the opportunity to meet such third case. However, in respect of writ proceedings, there is an exception to this general rule. A writ petition is after all a public law remedy. Technicalities stand at a distance. The distinction between a pleading under the CPC and a writ petition/counter affidavit has to be borne in mind. While in a pleading, i.e. a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. If a point is ostensibly a point of law and is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence, which must appear from the writ petition, and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the Court will not entertain the point. This appears to be the law laid down by the Supreme Court in Bharat Singh and Others Vs. State of Haryana and Others,

Here, I have checked the pleadings and in particular the affidavits-in-reply filed by the petitioner. In sub-paragraphs (J) to (M) of paragraph 4 of its reply to the counter affidavit of the respondents 2 to 8, the petitioner has pleaded in detail how the respondents 2 to 8 have gone out of the way to favour the respondent 9. The observations of the Supreme Court in V.K. Majotra Vs. Union of India (UOI) and Another, are apposite in this connection. While setting aside the order impugned before it on the ground that the writ petition had been disposed of on a point that was not raised by the parties in their pleadings and sounding a note of advice for the High Courts, the Supreme Court in paragraph 8 made the following remark:

**** With respect to the learned Judges of the High Court, we would say that the learned Judges have overstepped their jurisdiction in giving a direction beyond the pleadings or the points raised by the parties during the course of the arguments. The writ Courts would be well advised to decide the petitions on the points raised in the petition and if in a rare case keeping in view the facts and circumstances of the case any additional points are to be raised then the concerned and affected parties should be put to notice on the additional points to satisfy the principles of natural justice. Parties cannot be taken by surprise. We leave the discussion here.

(Underlining for emphasis by me)

It is not a case where the respondents have been taken by surprise. They had the occasion to consider the affidavits-in-reply filed by the petitioner and then to advance arguments to the extent they wished and were permitted to argue. There is no question of the respondents being taken by surprise. The Courts have a duty to scrupulously guard against any complaint of violation of natural justice and it would be unfortunate if a plea were raised that any of the parties here have not been heard on a particular point on which a decision would rest. I, thus, do not find sufficient force in the argument of Mr. Sengupta that without amending the writ petition, the points raised by Mr. Kapoor cannot be considered.

There could possibly be no two opinions, having regard to the facts and circumstances of the present case, that unfairness, arbitrariness, unreasonableness and irrationality have unerringly made their presence felt in the decision making process leading to elimination of the petitioner from the fray.

Here, the petitioner had quoted Rs. 243 crore as its total bid price as lump sum for the entire contract period of 60 (sixty) months. It is undisputed that the said amount was correctly expressed both in figures as well as in words. Since in terms of the tender terms and conditions the bidders were required to pay 1/5th of the total bid price as lump sum upfront payment of first year''s instalment, it would naturally flow from the total bid price/lump sum offer and there is no question of exercise of any choice by the party bidding while mentioning the amount towards lump sum upfront payment of the first year''s instalment. An arithmetical calculation of the amount constituting 1/5th of the total bid price was required to be mentioned, nothing more nothing less. The petitioner correctly expressed 1/5th of the amount in figures constituting lump sum upfront payment of first year''s instalment, but committed an error while expressing the said amount in words. Considering that the officials of the HRBC are educated people and experts in their own field, it would not have taken more than a second''s time to form an opinion that the amount expressed by the petitioner as lump sum upfront payment of first year''s instalment in words, which is at variance with the amount expressed in figures, was nothing but a shore mistake. However, in the process of eliminating the petitioner, no credence appears to have been given to the total bid price offered by the petitioner for the contract period of 5 (five) years. The total bid price deserved consideration, if not acceptance. Surprisingly, a curious methodology for calculation of the total bid price was adopted taking into consideration the amount mentioned in words as constituting lump sum upfront payment of first year''s instalment, to arrive at the total bid price. If it were only unwise, interference would not have been made. However, it goes a step further. There appears to be an absolute betrayal of lack of rationale in this respect. If indeed the total bid price were to be ascertained on the basis of the amount that is offered as upfront payment of the first year''s instalment, there was no requirement to call upon the interested parties to quote their total bid price as lump sum for the entire period of the contract. Though the amount constituting lump sum upfront payment of one year''s instalment was required to be mentioned in the form of offer both in words and in figures, the conclusion is inescapable, on reading the terms of the tender documents in its entirety, that ''offer'' mentioned in clauses 23 and 26 as well as the form of offer is relatable to the total bid price/lump sum offered for the entire contract period of 60 (sixty) months and that such bidder is to make a lump sum upfront payment of first year''s instalment, being 1/5th of the total lump sum offer. Without the total bid price, the upfront payment does not have any independent existence. In taking this view, I also draw support from the form of the letter of acceptance that does not refer at all to the lump sum upfront payment that is required to be made.

A mere procedural aberration or error in assessment by the committee leading to elimination of the petitioner could have been overlooked. But it is shocking that the committee adopted such a methodology for calculation thereby making a mountain out of a molehill, and far worse that the respondent 5 approved it.

Even otherwise, reference made by Mr. Sengupta to the form of offer for buttressing his contention that the total bid price and the sum offered towards upfront payment are part of a composite whole and, thus, one cannot be considered excluding the other does not advance the case of the respondents 2 to 8; on the contrary, I would view the argument noted in paragraph 18 (supra) as one in desperation. Insofar as the total bid price, to be mentioned in figures and words, and the lump sum upfront payment to be mentioned in figures are concerned, the petitioner did not commit any error in expressing it. The petitioner, if it wished its offer to be accepted, could under no circumstances be heard to say that the amount constituting lump sum upfront payment expressed in words i.e. Rs. 46 crore 60 lakh ought to be considered decisive for calculating its total bid price. Having regard to the other terms and conditions referred to with emphasis in paragraph 4 supra, the same In fact clothed the respondents 2 to 8 with complete authority to fall back on the total bid price offered by the petitioner and to bind it by the same, if it were to resile later as apprehended.

Assuming arguendo that Mr. Sengupta is right that the lump sum upfront payment is part of the offer and, therefore, it is the amount expressed in words that would prevail over the amount expressed in figures insofar as upfront payment is concerned, the action of the respondents 2 to 8 does not stand the test of fairness. Clause 23 extracted (supra) conferred power on the HRBC to seek clarification in respect of an offer of a bidder. Since there was no discrepancy in respect of the amount offered by way of total bid price either in words or figures, and the amount constituting upfront payment of first year''s instalment (being 1/5th of the total bid price) in figures was correctly expressed, it is too far-fetched an argument that if the respondents 2 to 8 were to seek a clarification of the offer and on clarification being obtained that Rs. 48 crore 60 lakh would be paid by the petitioner as lump sum upfront payment towards the first year''s instalment, it is the Court that would have taken the respondents 2 to 8 to task. If a public authority is found to err on the side of fairness and transparency, I wonder if any Court would brand the action unfair and liable to interference. If only the respondents 2 to 8 had called upon the petitioner to clarify as to whether it intended to make lump sum upfront payment of first year''s instalment in a sum of Rs. 48,60,00,000/- or Rupees forty six crore sixty lakh only and the petitioners were inclined to make payment of the latter amount, despite having offered Rs. 2,43,00,00,000/- (Rupees two hundred forty three crore only) as total bid price, rejection of the petitioner''s financial offer and consideration of the offer of the respondent 9 for award of contract would have followed as a matter of course. Non-grant of an opportunity to the petitioner to clarify its offer, in the circumstances, is considered fatal rendering the decision to select the respondent 9 vulnerable on the ground of unfair treatment.

I hasten to record that I have failed to persuade myself to agree with Mr. Sengupta that clause 23 did not give any power to the respondents 2 to 8 to seek clarification from the petitioner for the purpose of removing the discrepancy. His submission that a clarification, if at all considered necessary to be obtained, would have to be confined to break-up of costs or to seek reasons for very high/very low offers, is unacceptable having regard to the language employed in clause 23. As indicated therein, break-up of costs or reasons for very high or very low offers are only some of the situations where clarification could be obtained but application of clause 23 does not stand ruled out in other situations for two reasons, viz. (i) clarification of an offer, in general, could be obtained, since the situations mentioned therein are inclusive in nature and indicative of the special circumstances where such clarification could be obtained and (ii) because of user of "etc.". It is, therefore, absolutely an untenable argument that discrepancy of the nature that had surfaced was beyond the scope of clause 23, and the respondents 2 to 8 were not empowered to obtain clarification of the offer.

That apart, even if clause 23 had not been there in the tender terms and conditions, it would not have radically altered the position. It is settled law that freedom of contract that a public authority enjoys carries with it the inherent power to do whatever is in good faith. If the respondents 2 to 8 were to act without predilection, they ought to have obtained from the petitioner a clarification after noticing the discrepancy in question. Fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative or quasi administrative sphere is well recognized [see Tata Cellular (supra)] and it would have indeed been a fair play in the real sense of the term if the petitioner were called upon by the respondents 2 to 8 to clarity its offer.

Next, the submission of Mr. Sengupta regarding care and caution that was lacking in the petitioner needs consideration. One who lives in a glass house ought not to throw stones, is a common saying. A reading of the last paragraph of the decision of the committee extracted supra would suggest that the higher bid price of the respondent 9 was "by way of our total bid price". How could the word "our" find place therein? Does it suggest that the members of the committee were interested parties and the offer of the respondent 9 is their offer? Mr. Sengupta was rather careful in not conceding that the members of the committee had committed a mistake. He sought to explain the position by submitting that the word "our" had been bodily lifted from the offer form submitted by the respondent 9 and as summarised in the relevant document in course of evaluation of financial proposal, and that no adverse inference ought to be drawn that any of the members of the committee was personally interested. It would be absurd to come to the conclusion that only because the word "our" finds place in the last paragraph of the decision, the members of the committee were personally interested. The word "our" in the last paragraph, it goes without saying, found place therein by a sheer mistake. To err is human. A mistake occurs by slip or omission. If intentionally a mistake is committed, it ceases to be a mistake. If the mistake in the decision dated August 28, 2012 was not detected by the members of the committee or by the respondents 4 and 5 for several days until it was pointed out by the Court, I find no ground to accept Mr. Sengupta''s submission that 7 (seven) days having passed in between submission of the offer by the petitioner and opening thereof by the committee, the petitioner by exercising reasonable care and diligence ought to have detected the discrepancy and removed it before the offer was considered. If the petitioner is to be castigated for such a lapse, the respondents 2 to 8 ought also to be judged by the same standard. They were casual in their approach, because they had been given the lever by the petitioner itself to be eliminated and were determined to appoint the respondent 9, come what may.

The contention of Mr. Sengupta that the financial interest of the State has been taken care of by insisting upon the respondent 9 to match the total bid price offered by the petitioner falls flat on the ground in view of the submission made by Mr. Mukherjee that any further enhancement would not be viable, whereas the petitioner is willing to enhance its offer. I hold that it would not be in advancement of public interest, if the claim of the petitioner were considered unworthy of acceptance.

Last but not the least, the manner in which the respondent 9 was appointed for collection of toll on temporary basis has left a lot to be desired. The sequence of events provides ample reason to believe that an invisible hand was pulling the strings from behind the screen to favour the respondent 9. Even before the petitioner could be communicated of rejection of its financial offer, the respondent 5 entered into a deal with the respondent 9. In paragraph 15 of the writ petition, it has been pleaded that after the bids were opened on August 28, 2012, the agents of the petitioner were informed by the respondent 7 that they were the highest bidder (H 1) and that the respondent 9 was the second highest bidder (H2). The contents of paragraph 15 of the writ petition were dealt with by the respondents 2 to 8 in paragraph 15 of their counter-affidavit. There is no assertion that the petitioner was not declared to be the highest bidder (H1). As has been noticed above from the decision of the committee, the amount of Rs. 243 crore being the total bid price offered by the petitioner was completely ignored by the committee. The petitioner received the communication dated August 29, 2012 by post and not by e-mail or personal tender. It has been ascertained that the communication dated August 29, 2012 addressed to the respondent 9 was personally tendered to its representative in course of enquiry that was being made by it regarding the fate of its bid. It is not the stand of the respondents 2 to 8 that on August 29, 2012 itself, the discrepancy in respect of the petitioner''s expression of the amount constituting lump sum upfront payment of first year''s instalment was detected and made known to the parties. On the contrary, the statement of the petitioner that it was declared as the highest bidder (H1) and the respondent 9 was declared as the second highest bidder (H 2) stands uncontroverted. In such circumstances, there could have been no occasion for the respondent 9 to enquire on the following day the fate of its bid unless, of course, it had been clandestinely informed of the decision of the committee not to accept the financial offer of the petitioner. The situation takes a turn for the worse when one finds that the communication dated August 29, 2012 was personally tendered to the representative of the respondent 9 and although it was required to give its confirmation by return post, a half-printed response was prepared and portions thereof filled in later, by hand. Also, it was brought to the notice of Mr. Sengupta and Mr. Datta, learned Counsel assisting Mr. Mukherjee that copies of the response sent by the respondent 9, annexed to the two counter-affidavits filed by the respondents 2 to 8 and the respondent 9 are not copies from the same original document. They conceded that the observation of the Court was correct. What was the occasion for the respondent 9 to prepare two letters of response and making separate copies therefrom, however, was not explained. Though Mr. Kapoor argued on the first day that filling up of the blank portions of the response dated August 29, 2012 by hand is sufficient to arouse suspicion and the Court had also enquired from Mr. Datta the reasons as to why the blank portions were filled up by hand, no explanation was forthcoming. Viewed together, the links in the chain of circumstances appear to be complete. The respondent 9, contrary to the stand taken in the counter-affidavit of the respondents 2 to 8, must have been informed of the decision of the committee drafted subsequently declining to accept the offer of the petitioner, its representative was present in the office of the HRBC when the communication dated August 29, 2010 was handed over, an incomplete response was prepared hurriedly leaving vital portions thereof blank (where the sum to be offered had to be indicated), and following discussion/negotiation between the person responsible for taking decision on the tender and the officials of the respondent 9, the enhanced offer was tendered by hand, although confirmation was solicited in writing by return post. The tender terms and conditions did not provide for appointment of toll collection agent on temporary basis, yet, jettisoning all clauses of the tender notice the counter offer of the respondent 9 for collection of toll on temporary basis as well as on monthly upfront basis was accepted by the respondent 5 within the next couple of days. Nothing could be more brazen.

In State of U.P. and Another Vs. Johri Mal, the Supreme Court made the following observations:-

It is well settled that while exercising the power of judicial review the Court is more concerned with the decision-making process than the merit of the decision itself. In doing so, it is often argued by the defender of an impugned decision that the Court is not competent to exercise its power when there are serious disputed questions of facts; when the decision of the Tribunal or the decision of the fact-finding body or the arbitrator is given finality by the statute which governs a given situation or which, by nature of the activity the decision-maker''s opinion on facts is final. But while examining and scrutinising the decision-making process it becomes inevitable to also appreciate the facts of a given case as otherwise the decision cannot be tested under the grounds of illegality, irrationality or procedural impropriety. How far the Court of judicial review can reappreciate the findings of facts depends on the ground of judicial review. For example, if a decision is challenged as irrational, it would be well-nigh impossible to record a finding whether a decision is rational or irrational without first evaluating the facts of the case and coming to a plausible conclusion and then testing the decision of the authority on the touchstone of the tests laid down by the Court with special reference to a given case. This position is well settled in the Indian administrative law. Therefore, to a limited extent of scrutinising the decision-making process, it is always open to the Court to review the evaluation of facts by the decision-maker.

(Underlining for emphasis by me)

The point regarding propriety of the Court evaluating factual aspects in course of judicial review proceedings would stand answered by the aforesaid observations.

It is time to consider the decisions cited on behalf of the respondents separately and I propose to do that right now.

Glodyne Technoserve Limited (supra) reveals that the appellant was disqualified from consideration, in view of the fact that it did not file copy of the ISO 9001:2000 certificate of the current year despite having the same in its possession but had filed such certificate of the previous year. It was contended on behalf of the appellant that through inadvertence or otherwise, the current year''s certificate had not been filed. In any event, the appellant was entitled, almost as a matter of right, not to submit the documents required to be submitted along with the bid documents on the supposition that, even if such documents were valid and active, they could be submitted at the time of signing of the memorandum of understanding. Considering clause 9 of Section 7.1.1 of the ''Request for Proposal'', quoted verbatim in paragraph 45, the Supreme Court returned a finding in paragraph 46 that the same obliged a tenderer to produce along with the bid document a copy of the quality certificate, which is valid and active, on the date of submission of the bid, and it does not enable a Bidder to withhold the copy of such quality certificate. Notwithstanding the fact that the rate offered by the appellant was about Rs. 200 crore less than the tenderer to whom the contract was ultimately awarded, interference was declined and the appeal stood dismissed. Mr. Kapoor is right in pointing out that clause 9 contained a default clause, which was invoked by the public authority because of the failure of the appellant to produce the certificate of the current year. It was held by the Supreme Court that the decision of the public authority to reject the technical bid of the appellant was neither perverse nor arbitrary. Although it is true that rejection of the appellant''s bid would result in the public authority losing out on the financial aspect, it could not have selected the appellant in the absence of the required documents. Indeed, if the appellant had been selected, that would be contrary to the tender terms and conditions. The situation is not quite the same here and, therefore, the cited decision is of no help to the respondents 2 to 8.

In Patel Engineering Company (supra), the errors committed by the respondents 1 to 4 that were intended to be corrected, in the view of the Supreme Court, were not simply arithmetical and clerical but "a deliberate mode of splitting the bid which would amount to rewriting the entries in the bid document and cannot be treated as non-material". Even though the bid of the respondents 1 to 4 was less than the bids of the respondents 11 and 10 by Rs. 40 crore and Rs. 80 crore respectively, the Court was of the farther view that without correction, there would be inherent inconsistency between the particulars given in the annexure and the total bid amount in the bid documents of the respondents 1 to 4. This was the basis for setting aside the direction given by the Division Bench of this Court to permit the respondents 1 to 4 to correct the bid documents and to consider their bid after correction along with the other bids. Facts of two cases are seldom alike. The facts here are completely different from the facts in the case cited. In any event, having regard to the findings returned by the Supreme Court based on appreciation of the materials that were placed before it, there could be no doubt that the cited decision also does not aid the respondents.

The decision in Kanhaiya Lal Agrawal (supra) concerned offering of a rebate, which the High Court held amounted to an alteration of the tender document. The Supreme Court held that if an essential condition of the tender terms is not complied with, it is liable to rejection and that whether the condition is essential or collateral could be ascertained by reference to the consequence of non-compliance thereto. There can be no dispute with regard to the principle of law but the difficulty arises in the application of such principle to the facts of the present case. The error in expressing the lump sum upfront payment in words, having regard to the discussions above, could not have operated to the detriment of the petitioner.

BECIL (supra) was a case where the Supreme Court found the respondent 1 and the appellant to be technically qualified but paragraph 2 of the bid of the former was ambiguous and it was held to be its fault in not giving a clear-cut bid. Since the bid of the respondent 1 was open to two interpretations and Prasar Bharati had taken the second interpretation which, in the opinion of the Court, was a reasonable and possible interpretation, the impugned order of the High Court was set aside and the appeal allowed. It would follow from the discussions made above upholding the contentions of Mr. Kapoor, that the total bid price/lump sum offer for the entire period of the contract of the petitioner was not ambiguous and, therefore, the respondents 2 to 8 fell in error in rejecting its financial bid.

That the lowest bidder has no enforceable right to get a contract was emphasised in Asia Foundation & Construction Ltd. (supra). None can dispute that the tender issuing authority retains the right not to award a contract to the lowest bidder or the highest bidder, as the case may be, but such rejection must be based on reasons that are discernible. The passage on which reliance was placed by Mr. Mukherjee does not persuade me to take a view different from that taken above.

In Raunaq International Limited (supra), it was noticed by the Supreme Court that although relaxation was granted by the tender inviting authority in favour of the appellant, similar relaxation of criteria would have been required in respect of the petitioner before the High Court. The observations in the decision relied on by Mr. Mukherjee followed after recording of the factual aspect. I have failed to comprehend how such observations would stand in the way of interference in the present case.

The decision in Air India Ltd. (supra) reveals that the only point arising for consideration was whether the action of the respondent authority of inviting fresh offers was fair or not. The appellant, being a public sector undertaking and the national carrier, was reasonably expected by the respondent authority to prove beneficial to it in the long run and despite its offer being less than that of the writ petitioner before the High Court, it was selected for ground-handling services at the new Cochin Airport. The Supreme Court ruled that the action impugned in the writ petition was neither a product of arbitrariness or unreasonableness nor influenced by extraneous considerations. The Court also recorded that it would not be proper to look at only the financial aspect and an overall view is to be taken. Even judged by the principles laid down in the said decision, I do not see how the selection of the respondent 9 can be saved.

Before parting, it would be proper to bestow attention to the decisions in Asia Foundation & Construction Ltd. (supra) and Air India Ltd. (supra) laying down the law that a writ Court would interfere only in furtherance of public interest and not on the making out of a legal point. While interference may, in certain cases, be declined on the said ground if quashing of the impugned acts would not promote public interest, a departure may be made from the said rule in exceptional cases like the present one. Bearing public interest in mind, the Court may issue suitable directions to protect the interest of the State. It requires no reiteration that the freedom that the State enjoys to enter into a contract with a private party must not be actuated by oblique motives. Fairness and reasonableness in the process of decision making are considered to be the sine qua non. The decision must rest on a transparent method, which is fair. A decision of a public authority to award a contract to a party, reached upon culmination of a process of decision making that shocks the conscience of the Court, ought not to be sustained even for a minute if public interest is not derailed thereby. The discussions made above would leave none in doubt that the selection procedure stands so vitiated that even the specious ground of public interest would not be a germane factor to decline relief to the petitioner, since its appointment as toll collection agent in the manner proposed hereafter would enhance the State''s interest.

In Heinz India (P) Ltd. (supra), an order of the authority rejecting a claim made by the appellant for refund of a fee that was paid by it was made the subject matter of challenge in a writ petition before the High Court. The questions arising for decision are noted in paragraph'' 14 of the decision. While discussing the legal dimensions of judicial review in course of upholding the order impugned, the Court in paragraph 66 observed that judicial examination is confined to finding out whether the findings of fact reached by the authority have a reasonable basis on evidence and whether such findings are consistent with the laws of the land. I do not see how the decision inhibits interference in a matter where consideration of offers by a public authority results in the guarantee envisioned by Articles 14 and 19 of the Constitution and public interest being rendered a casualty.

In the final analysis, the decision of the committee not to accept the financial offer of the petitioner has to be set aside and I order accordingly. Since it is the version of the petitioner in its affidavit-in-reply that the respondents 2 to 8 should have given it an opportunity to outmatch the enhanced offer of the respondent 9 and it had also expressed before the Court that it is willing to increase its offer, it would not be unreasonable to presume that it has worked its economics right. If only the respondent 9 had agreed to enhance its offer further, the parties (I guess) would not have spent time on a few thousand or lakh of rupees. A crore must be within the petitioner''s reach. To protect the interest of the State, I direct the respondent 5 to immediately proceed to award the contract in favour of the petitioner after completion of all formalities and upon cancellation of the appointment made in favour of the respondent 9, provided the petitioner agrees, within 2 (two) weeks from date in writing, to enhance the total bid price offered by it by a crore and undertakes to pay 1/5th of Rs. 244 crore towards upfront payment for the first year''s instalment and the succeeding instalments in the manner required by the tender documents. In the event the petitioner is not agreeable to enhance its total bid price, it shall be open to the respondents 2 to 8 to issue fresh notice Inviting tenders or to continue with the engagement of the respondent 9 subject to approval of the State Government. The writ petition stands disposed of with the above directions. In the circumstances, the parties shall bear their own costs.

Urgent photostat certified copy of this judgment and order, if applied for, shall be furnished to the applicant at an early date.

LATER:

After the judgment was pronounced, Mr. Dastoor was asked as to whether the petitioner would be willing to enhance its total bid price further. He submits that the petitioner is agreeable to enhance it by a further crore.

In view of such submission, "Rs. 244 crore" in the body of the ordering portion shall be read as "245 crore".