Murahari Sri Raman, J.

1. The petitioner, craving to show indulgence in the process of taking decision of the Tender Committee in the Meeting held on 18.12.2024 (Annexure-4), beseeches invocation of judicial review in exercise of provisions of Articles 226 and 227 of the Constitution of India with the following prayer(s):

                  “Therefore, it is prayed that the writ petition may be admitted, records may be called for and after hearing the parties, the same may be allowed: by quashing the order under Annexure-4 Series relating to the petitioner‟s tender items as at Para-8; and by directing award of tender to the petitioner in respect of those items; and by granting any other relief(s) as found fit and proper in the facts and circumstances of the case;

                  And for which act of kindness, the petitioner shall as in duty bound, ever pray.”

Facts leading to filing of writ petition:

2. From the facts adumbrated in the writ petition, it is gathered that pursuant to Tender Call Notice dated 12.11.2024 (for short, “TCN”) floated by the Bhadrak Municipality, the petitioner participated by submitting its bid documents along with other participants. The petitioner raised objections on 04.12.2024 against the acceptance of bid of the opposite party No.2 (Rajesh Kumar Nayak) whose bid was found eligible and he emerged as successful bidder (hereinafter referred to as “L-1”) in works advertised as reflected at serial Nos.49, 51 and 52 (Annexure-4), namely,

                  1. Renovation Construction of Paver Road from Amarendra Nanda house towards Bapi Jena house at Sarada Vihar in Ward No.6.

                  2. Construction of Paver Road from Ganesh Tripathy house towards Jaydeb Nayak house at Niladri Vihar in Ward No.6

                  3. Construction of Paver Road from Bishnu Mohan Behera house towards Jadumani Nath house at Niladri Vihar in Ward No.6.

                  2.1. Two-fold objection has been raised by the petitioner:

                  “Sri Rajesh Kumar Nayak, a controctor, has submitted tenders using the signature ‘Rajesh Nayak‟ instead of his full name, ‘Rajesh Kumar Nayak‟.

                  Additionally, he provided the Schedule-B format with the statement ‘work in progress‟ rather than including the required particulars.

                  Thus the tender of Sri Nayak is liable for rejection.”

                  2.2. As against such objection(s), the Tender Committee in its Meeting held on 18.12.2024 took the following decisions:

                  “After thorough scrutiny, detailed discussions, and careful deliberation on the complaints received, the committee has reached the following conclusions:

                  1. Sri Rajesh Kumar Nayak, the contractor, participated in the tender process through the online mode using his Digital Signature Certificate (DSC). Since the DSC is a secure credential that cannot be used by others without the owner‟s knowledge, the committee finds no grounds to question the authenticity of his participation.

                  2. To address the concern regarding the use of the signature ‘Rajesh Nayak‟ instead of the full name ‘Rajesh Kumar Nayak‟ the Committee has directed the Executive Officer (BO) to obtain an affidavit from Sri Nayak, providing an explanation for the discrepancy in the signature. However, this variation does not constitute sufficient grounds for the rejection of his tender.

                  3. Regarding the submission of an improper Schedule- B, the Committee observed that the tender documents did not specify Schedule-B submission as ‘mandatory‟ in the checklist for bidders, unlike other schedules explicitly marked as mandatory. The Committee also noted that almost all bidders, with only a few exceptions, have not submitted the said schedule properly. Therefore, this issue alone cannot justify annulling the entire tender process. Hence, there is no procedural violation in this regard.”

                  2.3. Since the Tender Committee overruled such objection(s), and feeling such decision of the Committee not palatable, the petitioner questioned propriety of acceptance of bid of the opposite party No.2, and sought for judicial review of the decision of the opposite party No.1-Tender Committee.

Counter affidavit filed by the opposite party No.1:

3. The opposite party No.1 filed counter affidavit on 25.03.2026 clarifying that qua disputed items of works as at serial Nos.49, 51 and 52 amongst the works advertised four Contractors namely; Sanjeet Kumar Samal (petitioner), Rajesh Kumar Nayak (opposite party No.2), Manibhadra Jena and Sadhabani Malik submitted their bids.

                  3.1. Bid of the opposite party No.2 was under Scheduled Caste Category and, therefore, he was given preference over General Category. Being declared successful his bid was accepted as L-1 and finally work order was issued on 22.01.2025 in favour of said opposite party. Accordingly, an agreement in connection thereof has also been executed between the opposite party No.2 and the opposite party No.1-Bhadrak Municipality. With respect to work at serial No.49, the opposite party No.2 on estimation has also progressed and completed about 50% of the work.

                  3.2. Since furnishing of the details of works under Schedule- B and Check List under Schedule-E has not been expressly mentioned as “mandatory”, and the same does not constitute an essential tender condition, the bid of the opposite party No.2 could not be rejected on the ground of non-furnishing of such details. Having not found the bid of the opposite party No.2 defective, the Tender Committee has accepted the bid and the opposite party No.2 emerged as successful bidder (L-1).

                  3.3. By virtue of the interim order dated 31.01.2025 that “The tender finalization process in respect of item Nos.41, 49, 51 and 52 of works tender will remain stayed till next date of hearing”, the execution of the entire tender work, not only in respect of the disputed Item Nos.49, 51 and 52, but also in respect of Item No. 41, remained stalled.

                  Hearing:

                  2. Pleadings are completed. Matter relates to tender and it is submitted by the counsel for the opposite party No.1 that upon execution of agreement certain portion of the work has already been commenced by the opposite party No.2, who came out successful in the tender. However, record reveals that vide Order dated 31.01.2025, this Court passed the following:

                  “2. We see that there is notice in schedule-B itself regarding consequence of omission to submit the certificate to be rejection of the tender. On the other hand the committee relies on omission to indicate same in the check list. It is a fit case for direction on notice.

                  3. Issue notice along with this order on the writ petition and application. Accept one set of process fee for service by registered/speed post with AD. Petitioner will put in requisites.

                  4. List on 21st February, 2025. The tender finalization process in respect of item Nos.41, 49, 51 and 52 of works tender will remain stayed till next date of hearing.”

                  2.1. On the consent of counsel for the parties, the matter is taken up for final disposal.

                  2.2. Heard Sri Gopinath Mishra, learned Senior Advocate assisted by Ms. Pragyan Paramita Mohanty, learned Advocate for the petitioner and Sri Saibrata Rath, learned Advocate representing the opposite party No.1 in presence of Sri Sushree Sunil Kanta Nayak, Advocate representing the opposite party No.2. Hearing being concluded, the matter stood reserved for preparation and pronouncement of Judgment/Order.

Submissions of counsel appearing for respective parties:

4. Mr. Gopinath Mishra, learned Senior Advocate assisted by Ms. Pragyan Paramita Mohanty, learned Advocate appearing for the petitioner submitted that by dint of an information obtained under the Right to Information Act, 2005 it came to his knowledge that the details of work in progress as required under the Schedule-B— “Certificate of List of Work in Hand” appended to the TCN has not been furnished by the opposite party No.2. It is vehemently contended that the conditions laid down in TCN are mandatory in nature and even slightest mistake or defect in filling up such format by furnishing requisite particulars would entail rejection of the bid.

                  4.1. It is strenuously argued by the learned Senior Advocate that the opposite party No.1 took erroneous decision by favouring the opposite party No.2 and the Tender Committee has acted contrary to the terms of the TCN. The contractor (petitioner) did not sign the bid by disclosing his full name and failed to furnish information with respect to works in hand as specified in Schedule- B. Lack of such vital information is fatal to very acceptance of the tender documents submitted by the participant-opposite party No.2. Instead of rejecting the bid of the opposite party No.2 outright at the threshold his declaration as L-1 bidder smacks favouritism, arbitrariness and transgression of discretionary power vested in the Tender Committee-opposite party No.1.

                  4.2. The petitioner is placed as L-2 bidder in respect of Item No.41, while he would emerge as L-1 bidder in case the bid of the opposite party No.2 gets rejected being tainted with fatal defect qua disputed item Nos.49, 51 and 52 descriptions of works has already been enumerated supra. The defective or incomplete bid documents furnished by opposite party No.2 is liable to be discarded.

                  4.3. Winding up his arguments, Sri Gopinath Mishra, learned Senior Advocate sought for intervention of this Court by exercising power of judicial review vested under Articles 226 and 227 of the Constitution of India.

5. Opposing vehemently against the submissions of the petitioner, referring to counter affidavit Sri Saibrata Rath, learned Advocate appearing for the opposite party No.1 would submit that the apprehension of the petitioner is without comprehension. Essentially the petitioner is aggrieved by acceptance of bid of the opposite party No.2 with respect to information provided by him in Schedule-B appended to the TCN.

                  5.1. He submitted that in the view of the petitioner all the information sought to be filled up in Schedule-B is mandatory, lacking which the tender itself is subject to cancellation. It is submitted that such fundamental appreciation is beyond the record inasmuch as the papers enclosed with the counter affidavit would lead to demonstrate that furnishing details in Schedule-B is not mandatory requirement. It is not the case of the petitioner that the opposite party No.2 has not furnished any detail in Schedule-B; rather he candidly stated that certain works in hand are in progress.

                  5.2. The allegation of the petitioner that the manner in which the information is provided in Schedule-B by the opposite party No.2 entails cancellation of the bid, is liable to be repelled. It is not true that there was suppression of material fact with respect to previously awarded works in his favour by Bhadrak Municipality- opposite party No.1. Referring to paragaph-9 of the counter affidavit, it is canvassed before this Court that in the bidding process against the disputed items enumerated hereinabove, the opposite party No.2 emerged as L-1 bidder (in respect of all disputed item Nos. 49 and 52) and L-2 bidder (in respect of disputed item No. 51) and the opposite party No.2 since submitted its bid under Scheduled Caste Category, he was given preference over General Category and finally work order was issued on 22.01.2025 in his favour.

                  5.3. Under such premise, Sri Saibrata Rath, learned Advocate elicited that the opposite party No.1 having considered the grievance of the petitioner as urged on 04.12.2024 by way of objection/complaint, the Tender Committee found no substance in such complaint/ objection of the petitioner in its Meeting held on 18.12.2024. He would seek to draw attention of this Court that the opposite party No.2 with respect to disputed Item No.49 has already accomplished around 50% of the work.

                  5.4. Therefore, it is argued that furnishing of details of work under Schedule-B and Check List under Schedule-E are not mandatory and the learned counsel contended that the information sought to be furnished in such Schedules do not constitute essential conditions of TCN. Thus, the writ petition warrants dismissal.

Analysis and discussions:

6. Upon scrutiny of the documents enclosed with the writ petition and counter affidavit, the factual scenario would depict as follows:

                  i. The petitioner has signed at the required places, i.e., “Contractor”/“Signature”/“Signature of the Tenderer” in the bid document as “Rajesh Nayak”. Bare look at the signatures it is observed that such signature(s) as “Rajesh Nayak” uniformly placed throughout the bid document. TCN reveals as follows:

                  “The bidders must possess compatible Digital Signature Certificate (DSC) of Class-II or class-III.

                  ***

                  Procedure to participate in Online Bidding:

                  ***

                  3. Participation in Bid:

                  a. Portal Registration:

                  The Contractor/Bidder intending to participate in the bid is required to register in the Portal using his/her active personal/official e-mail ID as his/her Login ID and attach his/her valid Digital Signature Certificate (DSC) to his/her unique Login ID. He/She will enter relevant information as asked for about the firm/Contractor. This is a onetime activity for registering in Portal. The DSC used must be of appropriate class (Class II or Class III) issued from a registered Certifying Authority such as n-Code, Sify, TCS, and MTNL etc.”

                  ii. No objection is raised by the petitioner with respect to fact stated by the opposite party No.1 that “Sri Rajesh Kumar Nayak, the contractor, participated in the tender process through the online mode using his Digital Signature Certificate (DSC).”

                  6.1. In such view of the matter, this Court finds no substance in the objection set out by Sri Gopinath Mishra, learned Senior Advocate for the petitioner that the opposite party No.2 having put his signature as “Rajesh Nayak” instead of full name, the bid deserves rejection. Hence, while rejecting the objection of the petitioner in the Meeting held on 18.12.2024, the reason ascribed by the Tender Committee that “Since the DSC is a secure credential that cannot be used by others without the owner‟s knowledge, the Committee finds no grounds to question the authenticity of his participation” cannot be faulted with.

                  6.2. With respect to signature, further reason assigned by the Committee is as follows:

                  “To address the concern regarding the use of the signature “Rajesh Nayak” instead of the full name “Rajesh Kumar Nayak”, the Committee has directed the Executive Officer (EO) to obtain an affidavit from Sri Nayak, providing an explanation for the discrepancy in the signature. However, this variation does not constitute sufficient grounds for the rejection of his tender.”

                  6.3. Fruitful it is at this juncture to have regard to Division Bench decision of the Hon’ble High Court of Calcutta in the case of UGC-STA (Joint Venture) Represented by Sharma Transport Vrs. Coal India Limited, 2018 SCC OnLine Cal 16980 = (2019) 1 Cal LT 449, wherein it is observed as follows:

                  “40. Tender matters are not decided by running a fine tooth-comb over the process to discover which ‘i‟ has not been dotted or which ‘t‟ not crossed. The writ court always maintains a dispassionate distance from the process and, in course of the adjudication, does not imagine itself being in the position of the tender committee or as evaluators of the bids. It is only if the writ court finds the decision or the decision-making process to be utterly illegal or patently irrational or totally unreasonable that it would seek to intervene. If an executive authority has acted within its jurisdiction, has adopted a reasonable procedure and has rendered a cogent decision at the end of the process: the writ court will ask for nothing more. Oftentimes, as in the instant case, the question is whether the issue that has been carried by a failed bidder to court was deliberated upon by the executive functionary or Government body in a fair manner and a possible view expressed thereon. There is no unfairness or arbitrariness that the appellant has been able to demonstrate in the decision- making process or in the procedure adopted by the tender committee in respect of the relevant issue. This being the position, there is no room for interference in the present case.”

                  6.4. Having accepted the explanation of the opposite party No.2 as plausible, it is fair to say that the decision of the Committee-opposite party No.1 remains beyond reproach, as this Court, in exercise of the power of judicial review, can only examine the decision-making process, but not the decision itself.

7. It transpires from the averments contained in the writ petition and submissions advanced by the Senior Counsel for the petitioner that a complaint has been lodged before the Tender Committee inter alia suggesting that mandatory requirement of TCN being not fulfilled, the bid of the L-1 (opposite party No.2) deserves to be re- appreciated and rejected. As against this, the Tender Committee in its Meeting held on 18.12.2024 observed as follows:

                  “Regarding the submission of an improper Schedule-B, the Committee observed that the tender documents did not specify Schedule-B submission as ‘mandatory‟ in the checklist for bidders, unlike other schedules explicitly marked as mandatory. The committee also noted that almost all bidders, with only a few exceptions, have not submitted the said schedule properly. Therefore, this issue alone cannot justify annulling the entire tender process. Hence, there is no procedural violation in this regard.”

                  7.1. Perusal of Schedule-E with the Heading “Information regarding current litigation, debarring expelling of tenderer or abandonment of work by the tenderer”, it could be ascertained that the opposite party No.2 filled up the details by putting his signature as “Rajesh Nayak”. As has already been observed in the foregoing paragraphs that such signature cannot be manipulated inasmuch as the bid documents were uploaded online by using DSC.

                  7.2. The opposite party No.2 appeared through Mr. Sushree Sunilkanta Nayak, learned Advocate did not dispute the Schedule-E Forms as enclosed to the writ petition vide Annexure-2 series. However, he sailed along with the submissions made by the counsel for the opposite party No.1 that it is not the case of the petitioner that information has never been divulged under Schedule-B. On perusal of documents placed at Annexure-2 series, it is discernable that the opposite party No.2 furnished such Schedule-B by mentioning “work in progress”. Though all the columns of Schedule-B have not been filled up, the author of the tender document accepted the bid submitted by the opposite party No.2.

                  7.3. This Court is called upon to examine whether non-filling up information sought for in all the columns of Schedule-B would entail rejection of the bid and thereby cancellation of tender in toto.

                  7.4. This Court is taken to Clause-4 of the TCN vide Annexure-1 under the Heading “Procedure to Participate in Online Bidding” which inter alia provides as follows:

                  “4. Submissions of bid:

                  a. The bidder shall carefully go through the tender and prepare documents. The bid shall have a Technical bid and a financial bid. The Technical bid consists of cost of bid documents, EMD/bid security, GST, PAN/TIN, Registration Certificate, Affidavits, Profit loss statement, Joint venture agreement, list of similar nature of works, work in hand, list of machineries and any other information required by the OIT. The financial bid shall consist of the bill of quantities (BOQ) and any other price related information/undertaking including rebates.

                  b. The protected bill of quantities (BOQ) uploaded by the OIT for the bid is the authentic BOQ. Any alteration or deletion or manipulation of BOQ shall lead to cancellation of bid.

                  c. The bidder shall upload the scanned copies of document in support of eligibility criteria and qualification in information in prescribed format in PDF to the portal in the designated location of Technical bid.

                  d. The bidder shall write his name in space provided in the specified location in the BOQ published by the OIT. The bidder shall type rates in figure only in the rate column of respective items other than zero value without leaving it blank in case of item rate tender and type percentage excess or less up to one decimal place only in case of percentage rate tender.

                  e. The bidder shall log on to the portal with his/her DSC and move to the desired tender for uploading the documents in appropriate place one by one simultaneously checking the documents.

                  i. Bids cannot be submitted after due date of time. The bids once submitted cannot be viewed, retrieved or corrected. The bidder should ensure correctness of the bid prior to uploading and take print out of the system generated summary of submission to confirm successful uploading of bid.

                  ii. Each process in the e-procurement is time stamped and the system can detect the time of log in of each user including the bidder.

                  iii. The bidder should ensure clarity/legibility of the document uploaded by him in the portal.

                  iv. The system shall require all the mandatory forms and fields filled up by the bidder during process of submission of the bid.

                  v. The bidder should check the system generated confirmation statement on the status of the submission.

                  vi. The bidder should upload sufficiently ahead of the bid closure time to avoid traffic rush and failure of network.

                  vii. The tender inviting officer is not responsible for any failure, malfunction, or breakdown of the electronic system used during the e- procurement process.

                  viii. The bidder is required to up load documents related to his eligibility criteria and qualification information and Bill of Quantities duly filled in. It is not necessary for part of the bidder to up load the drawings and other bid documents (after signing) while uploading his bid. It is assumed that the bidder has referred all the drawings and documents uploaded by the Officer Inviting the Bid.

                  ix. Seeking any revision of rates or backing out of the bid claiming for not having referred to any or all documents provided in the Bid by the Officer Inviting the Bid will be construed as plea to disrupt the bidding process and in such cases the bid security shall be forfeited.

                  x. The bidder will not be able to submit his bid after expiry of the date and time of submission of bid (Server time). The date and time of bid submission shall remain unaltered even if the specified date for the submission of bids declared as a holiday for the OIT.

                  f. Signing of bid:

                  The ‘on-line’ bidder shall digitally sign on all statements, documents, certificates, uploaded by him, owning responsibility for their correctness/authenticity as per IT Act, 2000. If any of the information furnished by the bidder is found to be false/fabricated/ bogus, his EMD/Bid security shall stand forfeited and the bidder is liable to be blacklisted.”

                  7.5. The TCN contains the following:

                  “This detailed Tender Call Notice along with the clauses mentioned herein shall form a part of the contract and agreement.

                  ***

                  75. The bidders should furnish along with their tender:

                  1. A list of works, which are at present in their hand;

                  2. List of T & P and;

                  3. List of work executed in the prescribed proforma enclosed herewith (Schedule-B, C and D).

                  ***

                  112. Even qualified criteria are met, the bidders can be disqualified for the following reasons, if enquired by the Department:

                  (a) Making a false statement or declaration.

                  (b) Past record of poor performance.

                  (c) Past record of abandoning the work half way/ recession of contract.

                  (d) Past record of in-ordinate delay in completion of the work.

                  (e) Past history of litigation.”

                  7.6. It is evident from the above that list of works already executed were required to be furnished in the pro forma enclosed to the TCN in the form of Schedule-B, Schedule-C and Schedule-E, as the words employed are “work executed”. There is no indication whatsoever that details of work-in-progress are required to be spelt out mandatorily. Scrutiny of Schedules enclosed with counter affidavit of the opposite party No.1 reflects the nature of Schedules. It is clearly discernible which of the schedules is “mandatory”. It is demonstrated by Sri Saibrata Rath, learned Advocate that against Schedule- F, i.e., Affidavit, it is mentioned as “(To be submitted in original— Mandatory”; nevertheless, with respect to the format given at Schedule-B nowhere it is indicated that all the columns are required to be filled up as mandatory fields.

                  7.7. Under the above perspective, this Court would desist from showing indulgence in the decision taken by the opposite party No.1 in its Meeting of Tender Committee held on 18.12.2024, as it is observed that it is not mandatory requirement to divulge information by filling up all the columns of the Schedule-B particularly when the opposite party No.1 accepted the information furnished in the said Schedule by the petitioner as sufficient compliance.

8. This now takes this Court to refer to Clause 116 forming part of the TCN. In this respect it is relevant to have glance at Paragraph 7 of the counter affidavit filed by the opposite party No.1, which reads as under:

                  “That be that as it may, Clause 116 of the Tender notice at page 68 of the Writ Petition clearly provides that the decision of the Executive Officer/Municipal Engineer, Bhadrak Municipality shall be final and binding on the Contractor. The said clause is quoted herein below for ready reference:

                  ‘116. The bidders are required to go through each clause of contract conditions/special conditions carefully in addition to the clauses mentioned herein before tendering. In case of any dispute in the meaning of specification, description of items, rates, conditions of contract and agreement or due to errors/ typographical errors, commissions/omissions due to any other reasons, the decision of the Executive Officer/Municipal Engineer, Bhadrak Municipality shall be final and binding on the Contractor.‟

                  ***”

                  8.1. The complaint of the petitioner was placed before the Tender Committee in its Meeting held on 18.12.2024 for discussion and deliberation, which was rejected after thorough examination of the substance of the complaint.

                  8.2. Evidently, certain Schedules appended to the TCN required furnishing of information by the contractor by filling up the columns while submitting the bid. However, while Schedule-F signifies mandatory fulfillment of condition; Schedule-B and Check List under Schedule E do not speak about mandatory requirement. Thus, such Schedules (B and E) do not constitute essential terms and conditions of the tender. The TCN in this regard being clear and unambiguous, the acceptance of bid of the opposite party No.2 cannot be imputed as outcome of erroneous decision of the opposite party No.1-Tender Committee, as the bid fulfils the requisite conditions.

                  8.3. It is settled position of law that the setting of terms and conditions of tender are within the ken of administration and such policy is the domain of commercial decision of the tender making authority. As such, such decision are not open to judicial scrutiny unless they are arbitrary, discriminatory or mala fides. [Maa Binda Express Carrier Vrs. North-East Frontier Railway, (2014) 3 SCC 760; Directorate of Education Vrs. Educomp Datamatics Limited, (2004) 4 SCC 19; Meerut Development Authority Vrs. Assn. of Management Studies, (2009) 6 SCC 171; Michigan Rubber (India) Limited Vrs. State of Karnataka, (2012) 8 SCC 216; Airport Authority of India Vrs. Centre for Aviation Policy, Safety & Research (CAPSR), 2022 SCC OnLine SC 1334].

                  8.4. In Afcons Infrastructure Ltd. Vrs. Nagpur Metro Rail Corporation Ltd., (2016) 16 SCC 818, it has been succinctly stated that mere disagreement with the decision making process or the decision of the administrative authority is no reason for a Constitutional Court to interfere. The intention to favour someone with mala fides or taking decision arbitrarily, irrationally must be met before the Constitutional Court interferes with the decision making process or the decision. In the instant case pleading falls short of such allegations against the opposite parties. Nothing could be brought to indicate the decision of the Tender Committee on facts as perverse. Referring to Ramana Dayaram Shetty Vrs. International Airports Authority of India, (1989) 3 SCC 293 it is laid down 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 Vidarbha Irrigation Development Corporation Vrs. Anoj Kumar Agarwala, (2019) 2 SCR 493 with regard to construction of essential conditions and its necessity for fulfilment has been laid down as follows:

                  “13. The law on the subject is well settled. In Bakshi Security and Personnel Services Pvt. Ltd. Vrs. Devkishan Computed Pvt. Ltd. and Ors., (2016) 8 SCC 446, this Court held:

                  ‘14. The law is settled that an essential condition of a tender has to be strictly complied with. In Poddar Steel Corpn. Vrs. Ganesh Engg. Works (1991) 3 SCC 273 this Court held as under:

                  ‘6. *** 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 of the condition in appropriate cases.‟

                  15. Similarly in B.S.N. Joshi & Sons Ltd. Vrs. Nair Coal Services Ltd., (2006) 11 SCC 548 this Court held 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; ***‟

                  16. We also agree with the contention of Shri Raval that the writ jurisdiction cannot be utilised to make a fresh bargain between parties.‟

                  15. It is clear even on a reading of this judgment that the words used in the tender document cannot be ignored or treated as redundant or superfluous— they must be given meaning and their necessary significance. Given the fact that in the present case, an essential tender condition which had to be strictly complied with was not so complied with, the appellant would have no power to condone lack of such strict compliance. Any such condonation, as has been done in the present case, would amount to perversity in the understanding or appreciation of the terms of the tender conditions, which must be interfered with by a constitutional court.”

                  8.5. It is said that the authority floating tender is the best judge to grant relaxation with respect to any of the tender conditions. In Air India Ltd. Vrs. Cochin International Airport, (2000) 1 SCR 505, the observation of the Hon’ble Supreme Court of India runs as follows:

                  “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 Vrs. International Airport Authority, (1979) 3 SCC 488; Fertilizer Corporation Kamgar Union Vrs. Union of India, (1981) 1SCC 568; Assistant Collector, Central Excise Vrs. Dunlop India Ltd., (1985) 1 SCC 260; Tata Cellular Vrs. Union of India, (1994) 6 SCC 651; Ramniklal N. Bhutta Vrs. State of Maharashtra, (1997) 1 SCC 134 and Raunaq International Ltd. Vrs. 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. 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.”

                  8.6. In Jagdish Mandal Vrs. State of Orissa, (2007) 14 SCC 517, it is held as follows:

                  “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. 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

                  (ii) 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‟;

                  (iii) 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.”

                  8.7. In Silppi Construction Contractors Vrs. Union of India (2020) 16 SCC, 489, the Hon’ble Supreme Court of India observed as follows:

                  “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 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.”

                  8.8. In Agmatel India Pvt. Ltd. Vrs. Resoursys Telecom and others, (2022) 5 SCC 362, it has been observed thus:

                  “26. The abovementioned statements of law make it amply clear that the author of the tender document is taken to be the best person to understand and appreciate its requirements; and if its interpretation is manifestly in consonance with the language of the tender document or subserving the purchase of the tender, the Court would prefer to keep restraint. Further to that, the technical evaluation or comparison by the Court is impermissible; and even if the interpretation given to the tender document by the person inviting offers is not as such acceptable to the constitutional court, that, by itself, would not be a reason for interfering with the interpretation given.”

                  8.9. In Afcons Infrastructure Ltd. Vrs. Nagpur Metro Rail Corporation Ltd. and another, (2016) 16 SCC 818, the Hon’ble Supreme Court of India made the following observations:

                  “12. In Dwarkadas Marfatia and Sons Vrs. Port of Bombay, AIR 1989 SC 1642 it was held that the constitutional courts are concerned with the decision-making process. Tata Cellular Vrs. 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 interfering with the administrative decision and ought not to substitute its view for that of the administrative authority. This was confirmed in Jagdish Mandal Vrs. State of Orissa, (2007) 14 SCC 517 as mentioned in Central Coalfields [Central Coalfields Limited & Anr. Vrs. SLL-SML (Joint Venture Consortium) & Ors., (2016) 8 SCC 622].

                  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 Vrs. 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 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. 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.”

                  8.10. In Raunaq International Ltd. Vrs. I.V.R. Construction Ltd. (1999) 1 SCC 492, the Hon’ble Supreme Court of India held as under:

                  “9. 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 of paramount importance are commercial considerations. These would be:

                  (1) the price at which the other side is willing to do the work;

                  (2) whether the goods or services offered are of the requisite specifications;

                  (3) whether the person tendering has the ability to deliver the goods or services as per specifications. When large works contracts involving engagement of substantial manpower or requiring specific skills are to be offered, the financial ability of the tenderer to fulfil the requirements of the job is also important;

                  (4) the ability of the tenderer to deliver goods or services or to do the work of the requisite standard and quality;

                  (5) past experience of the tenderer and whether he has successfully completed similar work earlier;

                  (6) time which will be taken to deliver the goods or services; and

                  (7) often the ability of the tenderer to take follow- up action, rectify defects or to give post- contract services.

                  Even when the State or a public body enters into a commercial transaction, considerations which would prevail in its decision to award the contract to a given party would be the same. However, because the State or a public body or an agency of the State enters into such a contract, there could be, in a given case, an element of public law or public interest involved even in such a commercial transaction.

10. What are these elements of public interest?

                  (1) Public money would be expended for the purposes of the contract.

                  (2) The goods or services which are being commissioned could be for a public purpose, such as, construction of roads, public buildings, power plants or other public utilities.

                  (3) The public would be directly interested in the timely fulfilment of the contract so that the services become available to the public expeditiously.

                  (4) The public would also be interested in the quality of the work undertaken or goods supplied by the tenderer. Poor quality of work or goods can lead to tremendous public hardship and substantial financial outlay either in correcting mistakes or in rectifying defects or even at times in redoing the entire work— thus involving larger outlays of public money and delaying the availability of services, facilities or goods, e.g. a delay in commissioning a power project, as in the present case, could lead to power shortages, retardation of industrial development, hardship to the general public and substantial cost escalation.

                  11. When a writ petition is filed in the High Court challenging the award of a contract by a public authority or the State, the court must be satisfied that there is some element of public interest involved in entertaining such a petition. If, for example, the dispute is purely between two tenderers, the court must be very careful to see if there is any element of public interest involved in the litigation. A mere difference in the prices offered by the two tenderers may or may not be decisive in deciding whether any public interest is involved in intervening in such a commercial transaction. It is important to bear in mind that by court intervention, the proposed project may be considerably delayed thus escalating the cost far more than any saving which the court would ultimately effect in public money by deciding the dispute in favour of one tenderer or the other tenderer. Therefore, unless the Court is satisfied that there is a substantial amount of public interest, or the transaction is entered into mala fide, the Court should not intervene under Article 226 in disputes between two rival tenderers.”

                  8.11. A reference to Sterling Computers Ltd. Vrs. M & N Publications Ltd. (1993) 1 SCC 445 may not be inept, wherein it has been stated thus:

                  “18. While exercising the power of judicial review, in respect of contracts entered into on behalf of the State, the court is concerned primarily as to whether there has been any infirmity in the ‘decision-making process’. … the courts can certainly examine whether ‘decision-making process’ was reasonable, rational, not arbitrary and violative of Article 14 of the Constitution.”

                  8.12. The principles of equity and natural justice do not operate in the field of commercial transactions as held in Municipal Corporation, Ujjain Vrs. BVG India Ltd., (2018) 5 SCC 462 (paragraph 27). It has been observed in Airport Authority of India Vrs. Centre for Aviation Policy, Safety & Research (CAPSR), 2022 SCC OnLine SC 1334 that:

                  “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.”

                  8.13. With the above delineated position of law with respect to significance of words, expressions and phrases used in the tender document and importance of perspective of author of the tender vis-à-vis the scope of judicial review in Government tenders, it may safely be viewed that the Tender Committee in the instant matter have flawlessly taken decision on analysis of conditions in TCN that disclosure of information in Schedule-B is not an essential condition, which would have impact leading to cancel the bid. This apart, the signature of the contractor could not be questioned in view of the fact that sanctity is attached to the manner of submission of bids online by using DSC. The submission of the bid online being made using DSC by the opposite party No.2, there is little scope to doubt the veracity or authenticity of such submission of the bid. Thus, hardly any scope arises for this Court to exercise power under Article 226 of the Constitution of India. In this regard a dictum of the Hon’ble Supreme Court of India in N.G. Projects Ltd. Vrs. Vinod Kumar Jain, (2022) 6 SCC 127 may be pertinent, which is this:

                  “17. Therefore, the position of law with regard to the interpretation of terms of the contract is that the question as to whether a term of the contract is essential or not is to be viewed from the perspective of the employer and by the employer. Applying the aforesaid position of law to the present case, it has been the contention of Respondent-1 that the format for bank guarantee was not followed strictly by the State and that the relaxation given was not uniform, in that Respondent-1 was singled out. The said contention has found favour with the courts below.

                  ***

                  26. A word of caution ought to be mentioned herein that any contract of public service should not be interfered with lightly and in any case, there should not be any interim order derailing the entire process of the services meant for larger public good. The grant of interim injunction by the learned Single Bench of the High Court has helped no one except a contractor who lost a contract bid and has only caused loss to the State with no corresponding gain to anyone.”

                  8.14. In the wake of the above discussions, and keeping abreast of legal perspicuity, this Court, thus, appreciates the arguments advanced by Sri Saibrata Rath, learned Advocate refuting the contentions of the petitioner that once the Tender Committee has taken a decision, the same need not be interfered with by this Court invoking extraordinary jurisdiction under Article 226 of the Constitution of India, unless the circumstances warrants to prevent arbitrariness, irrationality, unreasonableness, bias and mala fide. Primacy is given to the voice of the author-employer. The petitioner could not be successful in demonstrating any of such infirmity in decision making process of the opposite party No.1- Tender Committee.

                  8.15. There is no fetter to entertain petition by the writ Court to interfere with the administrative action, in the event of manifest arbitrariness, irrationality, unreasonableness and perversity in the action of the authorities. Nonetheless, if language employed in the tender document is susceptible to assign two meanings or two interpretations, the decision taken by the authority would not invite any interference, even if the Court feels that the other interpretation ought to have been conveniently adopted.

                  8.16. In MJM-RSSG-DS (JV) Vrs. SM AND SNR (JV), Civil Appeal No.8841 of 2024, vide Order dated 21.08.2024 of the Hon’ble Supreme Court of India observed as follows:

                  “The High Court in exercise of powers under Article 226 of the Constitution of India is expected to be more circumspect and slow in dealing with matters involving tenders. Even assuming the contentions raised by the respondent No.1, might constitute a plausible view, in the absence of any arbitrariness or any irrationality on the part of the appellant which we feel is a plausible view especially in the light of the stand taken by the Independent External Monitors (IEM), the High Court ought not to have substituted its view.”

                  8.17. In the present case, this Court on fairness of the things does not feel it apposite to show any indulgence as the decision making process of the Tender Committee does not suffer vice of perversity.

Conclusion:

9. From the decisions as referred to in foregoing paragraphs the following propositions can be culled out:

                  i. 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.

                  ii. Decision of the Tender Committee as such is not open to judicial scrutiny unless it is arbitrary, discriminatory or tainted with mala fides.

                  iii. Though the decision of the Tender Committee/ Authority 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.

                  iv. The Court may perceive a reason to constitute a plausible view other than that is taken by the Tender Committee, in the absence of any arbitrariness or any irrationality on the part of the Authority concerned, the Court should not substitute its own view or reason with that of the view expressed by the Tender Committee.

                  v. Even when some defect is found in the decision- making process the Court must exercise its discretionary power under Article 226 of the Constitution of India 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.

                  vi. When a writ petition is filed in the High Court challenging the award of a contract by a public authority or the State, the Court must be satisfied that there is some element of public interest involved in entertaining such a petition. Therefore, unless the Court is satisfied that there is a substantial amount of public interest, or the transaction is entered into mala fide, the Court should not intervene under Article 226 the Constitution of India in disputes between two rival tenderers.

                  vii. In absence of demonstration that there has been unfairness or arbitrariness in the decision making process of the Tender Committee/authority concerned or in the procedure adopted by the Tender Committee in respect of the relevant issue, such exercise of power by the Court is unwarranted.

                  viii. If the executive authority has acted within its jurisdiction, and has adopted a reasonable procedure in order to render a cogent decision at the end of the process, the Court would not show indulgence.

                  ix. 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 of the condition in appropriate cases.

                  x. 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. The question as to whether a term of the contract is essential or not is to be viewed from the perspective of the employer and by the employer. 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.

10. It is significant to note that the contents and averments of the writ petition lead to indicate that the petitioner beseeches to take a fresh view on the interpretation and/or appreciation of evidence on record on merits, which in the considered opinion of this Court is not permissible in view of principles as set forth by the Courts referred to above. This Court cannot substitute its own view for that of the view expressed by the Tender Committee in absence of pleading to suggest arbitrariness, mala fide or unreasonableness in the decision of the Tender Committee.

                  10.1. Since Tender Committee of Bhadrak Municipality has come to the conclusion that the signature of opposite party No.2 cannot be disputed as the bid is uploaded online by using digital signature and non-filling of all the detail information as mentioned in Schedule-B appended to the TCN is not mandatory or essential condition, the decision of the Tender Committee-opposite party No.1 cannot be faulted with. The bid of the opposite party No.2 having rightfully accepted and the work order having been issued in its favour, the decision of the opposite party No.1 does not call for interference.

                  10.2. Having thus diligently considered the submissions of counsel for the respective parties and discussed the factual details emanating from the documents forming part of pleading of the writ petition coupled with the conspectus of decisions as referred to above, this Court does not find any infirmity in the decision making process of the Tender Committee.

11. Before parting with the case, this Court feels it expedient to take note of interim order passed by this Court at the time of entertainment of the writ petition. By interim order dated 31.01.2025 this Court directed that “the tender finalization process in respect of item Nos.41, 49, 51 and 52 of works tender will remain stayed till next date of hearing”. It has been brought to the notice of this Court by way of counter affidavit that the opposite party No.1 had already issued work order in favour of the opposite party No.2 and the latter has already commenced the work in respect of the one of the works awarded. Taking note of the principle enshrined in the maxim, actus curiae neminem gravabit, meaning thereby, “an act of the Court shall prejudice no one”, while vacating the interim order so passed in the matter, it is directed that the works so entrusted/awarded to the successful contractor (the opposite party No.2) by the opposite party No.1 with respect to items enumerated in the subject-Tender Call Notice shall be implemented forthwith by the parties keeping intact conditions of contract and the duration of the contract shall be suitably modified, if circumstances so warrant on mutually agreeable terms and conditions.

12. In the result, the writ petition, sans merit, is liable to be dismissed and this Court does so. Accordingly, the writ petition stands dismissed and pending Interlocutory Application(s), if any, shall be dismissed. In the circumstances, there shall be no order as to costs.

                  I agree