# M/S A.S. Traders v. State of U.P .& Ors

- **Citation:** (2025) 11 ILRA 822
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-11-04
- **Case number:** Writ - C No. 4673 of 2025
- **Bench:** Shekhar B. Saraf, Prashant Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-a-s-traders-v-state-of-u-p-ors-54793
- **Pages:** 11

## Headnote

C.S.C.

ISSUE FOR CONSIDERATION
Whether the rejection of the technical bid of the
petitioner on the ground that the petitioner had
not uploaded certain critical information under
the heading "Existing Commitment and
ongoing works", and the issuance of Letter of
Acceptance in favour of respondent no. 7,
suffers from arbitrariness, mala fides or illegality
warranting interference under Article 226 of
the Constitution of India in a matter relating
to award of an infrastructure contract.

HEADNOTE
Constitution of India, Art. 226 - Judicial
review - Award of contract - Infrastructure
project - E-Tender - Rejection of technical bid -
Letter of Acceptance - Scope of judicial review
in contractual matters - Judicial restraint -
Objections on Prahari Portal - Time limit of 72
hours - Public interest .
11 All. M/s A.S. Traders Vs. State of U.P. & Ors.
823
HELD:
Award
of
contract
is
a
commercial
transaction
-
Evaluating
tenders
and
awarding
contracts
are
essentially
commercial functions - Scope of judicial
review in contractual matters is very limited
- If the decision relating to award of
contract is bona fide and is in public
interest, courts will not interfere in exercise
of power of judicial review - Power of
judicial review will not be permitted to be
invoked to protect private interest at the
cost of public interest - Courts will not
interfere in exercise of power of judicial
review, even if a procedural aberration or
error in assessment or prejudice to a
tenderer is made out. Fair play in the joints
is
a
necessary
concomitant
for
an
administrative body - tenderer or contractor
with a grievance can always seek damages
in a civil court - On the Prahari Portal, any
bidder may raise an objection against any
of the other bidders within 72 hours of the
uploading of the bids - The 72 hours period
for filing objections is a critical timeline -
Once the stipulated time has lapsed, it is
not open to the petitioner to raise any fresh
objection - Allegations of mala fides are
vague
and
ambiguous
-
Bid
of
the
petitioner was rejected on the ground of
concealment
of
relevant
facts
-
No
interference
warranted
-
Writ
petition
dismissed. [Paras 21-27] (E-5)

CASE LAW CITED
B.S.N. Joshi & Sons Ltd. v. Nair Coal Services
Ltd., (2006) 11 SCC 548;
Banshidhar Construction Pvt. Ltd. v. Bharat
Coking Coal Limited, AIR 2024 SC (Civil) 2929;
Sterling Computers Ltd. v. M & N Publications
Ltd., (1993) 1 SCC 445;
Tata Cellular v. Union of India, (1994) 6 SCC
651;
Raunaq International Ltd. v. I.V.R. Construction
Ltd., (1999) 1 SCC 492;
Air India Ltd. v. Cochin International Airport
Ltd., (2000) 2 SCC 617;
Association of Registration Plates v. Union of
India, (2005) 1 SCC 679;
Afcons Infrastructure Ltd. v. Nagpur Metro Rail
Corporation Ltd., (2016) 16 SCC 818;
N.G. Projects Limited v. Vinod Kumar Jain and
others, (2022) 6 SCC 127
List of Acts
Constitution of India.

List of Keyword
Judicial
review;
Award
of
contract;
Infrastructure project; E-Tender; Rejection of
technical bid; Letter of Acceptance; Prahari
Portal; Time limit for objections; Public interest;
Judicial restraint; Commercial transaction.

CASE ARISING FROM
Impugned
order
dated
03.05.2025
declaring the petitioner "non-responsive"
and
Letter
of
Acceptance
dated
05.05.2025 issued in favour of respondent
no.
7
pursuant
to
E-Tender
dated
06.02.2025.

Appearances for Parties
Advs For Petitioner: Manish Kumar Rai.
Advs For Respondents: C.S.C., Dr. Pooja Singh.

## Text

822 INDIAN LAW REPORTS ALLAHABAD SERIES

7. Furthermore, the present writ
petition is hit by the doctrine of election,
wherein the Hon'ble Supreme Court has
held that if the petitioner has chosen a
particular path, he cannot be allowed to
tread on a different path for the same cause
of action in the case.

8. The Supreme Court in Rajasthan
State
Industrial
Development
&
Investment Corpn. v. Diamond & Gem
Development Corpn. Ltd. reported in
(2013) 5 SCC 470 has categorically held
that one cannot 'approbate and reprobate' at
the same time as it vitiates the legal
principle that one cannot accept and reject
the same legal instrument or transaction.
The relevant paragraph of the judgement is
quoted herein-below:-

"16. Thus, it is evident that the
doctrine of election is based on the rule of
estoppel?the principle that one cannot
approbate and reprobate is inherent in it.
The doctrine of estoppel by election is one
among the species of estoppels in pais (or
equitable estoppel), which is a rule of
equity. By this law, a person may be
precluded, by way of his actions, or
conduct, or silence when it is his duty to
speak, from asserting a right which he
would have otherwise had."

9. In the present case, the petitioner
after filing an application for rectification
as provided in the statute of an order has
subsequently chosen to approach the writ
court for quashing the same order. Having
chosen to proceed under the remedy
provided in the statute, he cannot be now
allowed to seek a fresh remedy under
Article 226 of the Constitution of India.
The rationale behind the same is that when
on the same facts, a person has the right to
claim one of two reliefs and with full
knowledge he elects to claim one and
obtains it, it is not open to him thereafter to
fink out on his election and claim the
alternative relief.

10. In light of the aforesaid, the writ
petition is dismissed.
----------
(2025) 11 ILRA 822
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.11.2025

BEFORE

THE HON'BLE SHEKHAR B. SARAF, J.
THE HON'BLE PRASHANT KUMAR, J.

Writ - C No. 4673 of 2025

M/S A.S. Traders ...Petitioner
Versus
State of U.P .& Ors. ...Respondents

Counsel for the Petitioner:
Manish Kumar Rai

Counsel for the Respondents:
C.S.C.

ISSUE FOR CONSIDERATION
Whether the rejection of the technical bid of the
petitioner on the ground that the petitioner had
not uploaded certain critical information under
the heading "Existing Commitment and
ongoing works", and the issuance of Letter of
Acceptance in favour of respondent no. 7,
suffers from arbitrariness, mala fides or illegality
warranting interference under Article 226 of
the Constitution of India in a matter relating
to award of an infrastructure contract.

HEADNOTE
Constitution of India, Art. 226 - Judicial
review - Award of contract - Infrastructure
project - E-Tender - Rejection of technical bid -
Letter of Acceptance - Scope of judicial review
in contractual matters - Judicial restraint -
Objections on Prahari Portal - Time limit of 72
hours - Public interest .
11 All. M/s A.S. Traders Vs. State of U.P. & Ors.
823
HELD:
Award
of
contract
is
a
commercial
transaction
-
Evaluating
tenders
and
awarding
contracts
are
essentially
commercial functions - Scope of judicial
review in contractual matters is very limited
- If the decision relating to award of
contract is bona fide and is in public
interest, courts will not interfere in exercise
of power of judicial review - Power of
judicial review will not be permitted to be
invoked to protect private interest at the
cost of public interest - Courts will not
interfere in exercise of power of judicial
review, even if a procedural aberration or
error in assessment or prejudice to a
tenderer is made out. Fair play in the joints
is
a
necessary
concomitant
for
an
administrative body - tenderer or contractor
with a grievance can always seek damages
in a civil court - On the Prahari Portal, any
bidder may raise an objection against any
of the other bidders within 72 hours of the
uploading of the bids - The 72 hours period
for filing objections is a critical timeline -
Once the stipulated time has lapsed, it is
not open to the petitioner to raise any fresh
objection - Allegations of mala fides are
vague
and
ambiguous
-
Bid
of
the
petitioner was rejected on the ground of
concealment
of
relevant
facts
-
No
interference
warranted
-
Writ
petition
dismissed. [Paras 21-27] (E-5)

CASE LAW CITED
B.S.N. Joshi & Sons Ltd. v. Nair Coal Services
Ltd., (2006) 11 SCC 548;
Banshidhar Construction Pvt. Ltd. v. Bharat
Coking Coal Limited, AIR 2024 SC (Civil) 2929;
Sterling Computers Ltd. v. M & N Publications
Ltd., (1993) 1 SCC 445;
Tata Cellular v. Union of India, (1994) 6 SCC
651;
Raunaq International Ltd. v. I.V.R. Construction
Ltd., (1999) 1 SCC 492;
Air India Ltd. v. Cochin International Airport
Ltd., (2000) 2 SCC 617;
Association of Registration Plates v. Union of
India, (2005) 1 SCC 679;
Afcons Infrastructure Ltd. v. Nagpur Metro Rail
Corporation Ltd., (2016) 16 SCC 818;
N.G. Projects Limited v. Vinod Kumar Jain and
others, (2022) 6 SCC 127
List of Acts
Constitution of India.

List of Keyword
Judicial
review;
Award
of
contract;
Infrastructure project; E-Tender; Rejection of
technical bid; Letter of Acceptance; Prahari
Portal; Time limit for objections; Public interest;
Judicial restraint; Commercial transaction.

CASE ARISING FROM
Impugned
order
dated
03.05.2025
declaring the petitioner "non-responsive"
and
Letter
of
Acceptance
dated
05.05.2025 issued in favour of respondent
no.
7
pursuant
to
E-Tender
dated
06.02.2025.

Appearances for Parties
Advs For Petitioner: Manish Kumar Rai.
Advs For Respondents: C.S.C., Dr. Pooja Singh.

(Delivered by Hon'ble Prashant Kumar, J.)

1. The petitioner is engaged in the
business of constructing roads and in
furtherance of his business, he participated
in an E-Tender dated February 6, 2025
invited by the Superintending Engineer,
Public Works Department, District -
Pratapgarh (hereinafter referred to as
respondent no. 5). As per the terms and
conditions
of
the
E-Tender
notice,
participants were required to upload their
bids on the Prahari portal on March 12,
2025
on
or
before
12:00
noon.
Accordingly, the petitioner submitted his
bid on the Prahari portal after logging in
through the Chankya Software. The
technical bids were opened on March 12,
2025 from 12:30 p.m. onwards. Thereafter
all the participants of bid were given equal
opportunity to raise objection (if any)
against the other bidders within 72 hours of
opening of the technical bid. The petitioner
submitted a written complaint against M/s
Arunima
Constructions
(hereinafter
referred to as respondent no. 7) on May
824 INDIAN LAW REPORTS ALLAHABAD SERIES
2, 2025, stating that the bid of respondent
no. 7 was ought to be non responsive as
per Note-II of Clause 4.7 of Addendum/
Amendment of Instruction to Bidders
(ITB). After completion of technical
evaluation of the tender, the bid of the
petitioner and four other bidders were
rejected by the respondent authorities. On
May 3, 2025, the financial bid was opened
wherein respondent no. 7 was declared as
L-1 bidder and consequently the tender was
awarded to him on May 5, 2025. Against
the rejection of the bid of the petitioner as
well as grant of Letter of Acceptance
(hereinafter referred to as L.O.A.) in
favour of respondent no. 7, the petitioner
herein has filed the instant writ petition
with the following prayers:

"i. a writ, order or direction in
the nature of CERTIORARI to quash the
Impugned order dated 03.05.2025 passed
by respondent No.5 in furtherance of
Tender
notice
No
487/93C-PBH-FTP
Circle/2024-25 dated 06.02.2025, by which
petitioner firm has been declared "Non
responsive" (disqulaified) after evaluation
of the technical bid, contained as Annexure
2 to this writ petition.

ii. a writ, order or direction in the
nature of CERTIORARI to quash the
Impugned letter of acceptance dated 5.5.2025
issued by respondent No.5 in furtherance of
Tender
notice
No
487/93C-PBH-FTP
Circle/2024-25 dated 06.02.2025, by which
the Bid of respondent No.7 has been accepted
by the respondent No. 5 for the work of
widening and strengthening of Badhani,
Balipur,
Babuganj
Road
in
District
Pratapgarh, contained as Annexure 3 to this
writ petition.

iii. a writ, order or direction in
the nature of MANDAMUS to direct the
respondent No.1 to 5 to accept the
technical bid of petitioner firm declaring
Respondent no 7 as "non responsive" and
proceed further from the stage of opening
of financial bid in furtherance of Tender
notice No 487/93C-PBH-FTPCircle/202425 dated 6.02.2025 (Annexure 1).

iv. a writ, order or direction in
the nature of MANDAMUS to direct the
respondent No.4 and Respondent no 5 to
decide the objection of the petitioner dated
02 May 2025, contained as Annexure 12 to
this writ petition.

v. a writ, order or direction in the
nature of MANDAMUS to direct to the
respondents concern to constitute a high
level committee to enquire into the
Malafide
committed
by
erring
PWD
authorities, particularly by Sri SK Gautam,
Superintending
Engineer,
PratapgarhFatehpur Circle, PWD /Respondent no 6,
in order to get contract awarded anyhow to
respondent No.7."

Arguments of the petitioner

2. Learned counsel for the petitioner
submits that while evaluating the technical
bid, Clause 4.7 has not been properly
considered by the respondent authorities for
which the petitioner gave a complaint. He
further submits that the said complaint was
not considered and the tender was awarded
to the respondent no. 7.

3.
He
further
submits
that
petitioners disqualification was also not
legally tenable and the same has been done
with
malafide
intentions.
The
entire
exercise of awarding L.O.A. to the
respondent no. 7 was not correct and was
done with the sole intention of providing
benefits to the respondent no. 7. He also
11 All. M/s A.S. Traders Vs. State of U.P. & Ors.
825
submits that once certain illegalities in the
tender proceeding was brought to the notice
of the respondents, it was the paramount
duty of the respondents to have considered
the same before awarding the tender.

4.
Learned
counsel
for
the
petitioner has relied upon the judgement of
Hobble Supreme Court in the case of
B.S.N. Joshi & sons Ltd. v. Nair Coal
Services Ltd.; (2006) 11 SCC 548, which
has emphasised certain principles for
judicial review in contractual matters. The
relevant para of the judgement is delineated
below:

 "66. We are also not shutting our
eyes towards the new principles of judicial
review which are being developed; but the
law as it stands now having regard to the
principles laid down in the aforementioned
decisions may be summarized as under:

 i)
If
there
are
essential
conditions, the same must be adhered to;

 ii) If there is no power of general
relaxation, ordinarily the same shall not be
exercised and the principle of strict
compliance would be applied where it is
possible for all the parties to comply with
all such conditions fully;

 iii) If, however, a deviation is
made in relation to all the parties in regard
to any of such conditions, ordinarily again
a power of relaxation may be held to be
existing;

 iv) The parties who have taken
the benefit of such relaxation should not
ordinarily be allowed to take a different
stand in relation to compliance with
another
part
of
tender
contract,
particularly when he was also not in a
position to comply with all the conditions of
tender fully, unless the court otherwise
finds relaxation of a condition which being
essential in nature could not be relaxed and
thus the same was wholly illegal and
without jurisdiction.

 v) When a decision is taken by the
appropriate
authority
upon
due
consideration of the tender document
submitted by all the tenderers on their own
merits and if it is ultimately found that
successful bidders had in fact substantially
complied with the purport and object for
which essential conditions were laid down,
the same may not ordinarily be interfered
with.

 (vi) The contractors cannot form
a cartel. If despite the same, their bids are
considered and they are given an offer to
match with the rates quoted by the lowest
tenderer, public interest would be given
priority.

 (vii) Where a decision has been
taken purely on public interest, the Court
ordinarily
should
exercise
judicial
restraint."

5. He has also relied upon the
judgement passed by the Hon'ble Supreme
Court
in
the
case
of
Banshidhar
Construction Pvt. Ltd. v. Bharat Coking
Coal Limited; AIR 2024 SC (Civil) 2929,
wherein it has been held as follows:

 "21.
There
cannot
be
any
disagreement to the legal proposition
propounded in catena of decisions of this
Court relied upon by the learned counsels
for the Respondents to the effect that the
Court does not sit as a Court of Appeal in
the matter of award of contracts and it
merely reviews the manner in which the
826 INDIAN LAW REPORTS ALLAHABAD SERIES
decision
was
made;
and
that
the
Government and its instrumentalities must
have a freedom of entering into the
contracts. However, it is equally well
settled that the decision of the government/
its instrumentalities must be free from
arbitrariness and must not be affected by
any bias or actuated by malafides.
Government
bodies
being
public
authorities are expected to uphold fairness,
equality and public interest even while
dealing with contractual matters. Right to
equality
under
Article
14
abhors
arbitrariness. Public authorities have to
ensure that no bias, favouritism or
arbitrariness are shown during the bidding
process and that the entire bidding process
is carried out in absolutely transparent
manner."

 Arguments of the respondents

6. Per contra, Shri Prakhar Mishra,
learned Additional Chief Standing Counsel
appearing for the State respondent nos. 1 to
5 submitted that in pursuance of the Etender notice dated February 6, 2025, eight
contractors had participated and technical
bid was submitted by them. Under the
Prahari portal any bidder can raise
objection within 72 hours of filing of bids
and the same would be considered by the
Tender Committee. In the present case, the
petitioner had raised objection against three
bidders with regard to the documents
uploaded by them. The objections raised by
the petitioner and other bidders was
referred
to
the
Tender
Evaluation
Committee, who declared the bid of five
bidders to be non responsive. However, the
bid of
three
bidders
were
declared
responsive, and therefore, the financial bid
was opened on May 3, 2025. As the bid of
the respondent no. 7 was found to be the
lowest, 'L.O.A.' was issued to him and
agreement of bond was executed on May 9,
2025.

7. He further submits that in
relation to declaring the petitioner's firm as
non-responsive, it is to be noted that two
complaints were made by respondent no. 7
against the petitioner firm to the effect that
under the head of "Existing Commitment
and ongoing works", the following ongoing
works were concealed by the petitioner
firm:

 "(i) Providing and fixing of
Boundary Wall around Defence Corridor
periphery in Village Bhatgaon, Tehsil
Sarojni Nagar, District Lucknow (Tender
Id-2023_UPID_873503_2)

 (ii)
Package
No.
UP7554
Amethi."

8. On the complaint of respondent
no. 7, the Executive Engineer, Construction
Division, P.W.D., Pratapgarh conducted an
inquiry and found that the petitioner had
not uploaded certain critical information
under
the
heading
of
Existing
Commitment and ongoing works. The
complaint of respondent no. 7 against the
petitioner was found to be correct and the
bid of the petitioner was found to be non
responsive/disqualified.

9. He further submitted that as per
Government Order dated August 25, 2020,
any bidder can file a complaint on the
Prahari Portal against other bidders
within a period of 72 hours, however, it
was not open for the petitioner to file a
complaint thereafter. The period of three
days for filing a complaint is critical. He
submitted that if there is no cap then the
addressing of complaints procedure would
be a never ending process and no tender
11 All. M/s A.S. Traders Vs. State of U.P. & Ors.
827
could be finalized. The counsel for the
respondent has placed reliance on the
judgment passed by a Coordinate Bench of
this court passed in Energo Constructions
Private Limited v. Uttar Pradesh Rajya
Vidyut Utpadan Nigam Limited and
Others;
Neutral
Citation
No.:2024:AHC:30429-DB.

10. Dr. Pooja Singh, learned
counsel appearing for the respondent no. 7
vehemently argued that after completion of
scrutiny, the bid of the respondent no. 7
was found to be responsive and the L.O.A.
was issued to the respondent no. 7 and the
agreement was executed on May 09, 2025.
Subsequent to the same, the respondent no.
7 has mobilized its team and has completed
approximately 90 percent of the work
awarded for widening of the road.

11. She further submits that it is an
infrastructure project and cannot be stopped
on mere technicalities. She has placed
reliance on the judgement of Hon'ble
Supreme Court passed in N.G. Projects
Limited v. Vinod Kumar Jain and others;
(2022) 6 SCC 127, wherein it has been held
as under:

 "10. We find that the interference
in contract awarded to the appellant is
wholly unwarranted and has caused loss to
public interest. Construction of roads is an
essential
part
of
development
of
infrastructure in any State. The learned
Single Bench and the Division Bench of the
High Court were exercising power of
judicial review to find out whether the
decision of the State was manifestly
arbitrary or unjust as laid down by this
Court in Tata Cellular v. Union of India;
(1994) 6 SCC 651 and to act as appellate
authority over the decision of the State".

 ***
 13. This Court sounded a word of
caution in another judgment reported as
Silppi Constructions Contractors v. Union
of India; (2020) 16 SCC 489, wherein it
was held that the Courts must realize their
limitations and the havoc which needless
interference in commercial matters could
cause. In contracts involving technical
issues, the Courts should be even more
reluctant because most of us in judges
robes do not have the necessary expertise
to adjudicate upon technical issues beyond
our domain. As laid down in the judgments
cited above, the Courts should not use a
magnifying glass while scanning the
tenders and make every small mistake
appear like a big blunder. In fact, the
courts must give fair play in the joints
to the government and public sector
undertakings in matters of contract. Courts
must also not interfere where such
interference would cause unnecessary loss
to the public exchequer.

 ***

 21. Since the construction of road
is an infrastructure project and keeping in
view the intent of the legislature that
infrastructure projects should not be stayed,
the High Court would have been well advised
to hold its hand to stay the construction of the
infrastructure project. Such provision should
be kept in view even by the Writ Court while
exercising its jurisdiction under Article 226
of the Constitution of India.'

 Analysis

12. Heard learned counsel for the
parties and perused the pleadings along
with annexures filed by them and the
records.
828 INDIAN LAW REPORTS ALLAHABAD SERIES
13. Before going into merits of the
matter, this Court would like to scrutinize
the scope of judicial review in the matter of
infrastructure contracts.

14. In the matter of Sterling
Computers Ltd v. M & N Publications
Ltd.; (1993) 1 SCC 445, the Hon'ble
Supreme Court observed:

 "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."

15. In the matter of Tata Cellular
v. Union of India; (1994) 6 SCC 651, the
Honble Supreme Court referred to the
limitations relating to the scope of judicial
review of administrative decisions and
exercise of powers in awarding contracts,
and laid down the principles:

 "94. The principles deducible
are:

 (1) The modern trend points to
judicial restraint in administrative action.

 (2) The Court does not sit as a
court of appeal but merely reviews the
manner in which the decision was made.

 (3) The Court does not have the
expertise to correct the administrative
decision. If a review of the administrative
decision is permitted it will be substituting its
own decision, without the necessary expertise
which itself may be fallible.
 (4) The terms of the invitation to
tender cannot be open to judicial scrutiny
because the invitation to tender is in the
realm of contract. Normally speaking, the
decision to accept the tender or award the
contract
is
reached
by
process
of
negotiations through several tiers. More
often than not, such decisions are made
qualitatively by experts.

 (5) The Government must have
freedom of contract. In other words, a
fairplay in the joints is a necessary
concomitant for an administrative body
functioning in an administrative sphere or
quasi-administrative sphere. However, the
decision must not only be tested by the
application of Wednesbury principle of
reasonableness (including its other facts
pointed out above) but must be free from
arbitrariness not affected by bias or actuated
by mala fides.

 (6)
Quashing
decisions
may
impose heavy administrative burden on the
administration and lead to increased and
unbudgeted expenditure....."

16. In the matter of Raunaq
International Ltd. v. I.V.R. Construction
Ltd.; (1999) 1 SCC 492, the Hon'ble
Supreme Court dealt with the matter in some
detail. The Supreme Court 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;
11 All. M/s A.S. Traders Vs. State of U.P. & Ors.
829
 (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 often

 (7) 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 or 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
830 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

17. In the matter of Air India Ltd.
v. Cochin International Airport Ltd.;
(2000) 2 SCC 617, the Hon'ble Supreme
Court summarized the scope of interference
as enunciated in several earlier decisions
and held as follows:

 " 7. .... 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."

 [Emphasis added]

18. In the matter of Association of
Registration Plates v. Union of India;
(2005) 1 SCC 679, the Hon'ble Supreme
Court held as under:

 "43. .... Article 14 of the
Constitution prohibits government from
arbitrarily choosing a contractor at its will
and pleasure. It has to act reasonably,
fairly and in public interest in awarding
contracts. At the same time, no person can
claim a fundamental right to carry in
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. ..."

19. In the matter B.S.N. Joshi v.
Nair Coal Services Ltd. (Supra), the
Honble Supreme Court observed as
follows:

 "56. 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
11 All. M/s A.S. Traders Vs. State of U.P. & Ors.
831
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."

20. The Hon'ble Supreme Court in
the case of Afcons Infrastructure Ltd. v.
Nagpur Metro Rail Corporation Ltd and
another; 2016 (16) SCC 818 has held as
follows:

 "13. In other words, a mere
disagreement with the decision making
process
or
the
decision
of
the
administrative authority is no reason for a
constitutional Court to interfere. The
threshold of mala fides, intention to favour
someone or arbitrariness, irrationality or
perversity
must
be
met
before
the
constitutional Court interferes with the
decision making process or the decision.

***

 15. We may add that the owner or
the employer of a project, having authored
the tender documents, is the best person to
understand and appreciate its requirements
and
interpret
its
documents.
The
constitutional Courts must defer to this
understanding and appreciation of the
tender documents, unless there is mala fide
or perversity in the understanding or
appreciation or in the application of the
terms of the tender conditions. It is possible
that the owner or employer of a project
may give an interpretation to the tender
documents that is not acceptable to the
constitutional Courts but that by itself is
not a reason for interfering with the
interpretation given."

 Conclusion
21. The legal proposition drawn in
the light of above judgements of the
Hon'ble Supreme Court is that the judicial
review of administrative action is intended
to
prevent
arbitrariness,
irrationality,
unreasonableness, bias and malafides. Its
purpose is to check whether the decision is
made 'lawfully' and not to check whether
the 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. If the decision
relating to award of contract is bona fide
and is in public interest, courts will not
interfere in exercise of power of judicial
review, even if a procedural aberration or
error in assessment or prejudice to a
tenderer is made out.

22. In this case, the petitioner had
the liberty to raise objections against the
bid submitted by respondent no.7. In fact,
the petitioner had raised objections against
three other bidders, and those objections
were placed before the Tender Evaluation
Committee. On the Prahari Portal, to ensure
transparency, it has been provided that any
bidder may raise an objection against any
of the other bidders within 72 hours of the
uploading of the bids. However, in the
present case, the petitioner did not raise any
objection against the bid uploaded by
respondent no. 7 within the stipulated time
period.

23. The 72 hours period for filing
objections is a critical timeline. If no time
limit is prescribed, bidders could continue
filing objections indefinitely, which would
hinder the tender process and prevent
finalization of the contract. Once the
832 INDIAN LAW REPORTS ALLAHABAD SERIES
stipulated time has lapsed, it is not open to
the petitioner to raise any fresh objection
against the competing bidders. No reason
for the delay, or for not availing the threeday period provided under the Government
Order dated August 25, 2020, has been
stated in the writ petition. Moreover, the
allegations of mala fides raised in this writ
petition are vague and ambiguous in nature.

24. As per ratio laid down in a
catena of judgements of the Hon'ble
Supreme Court, it is clear that the scope of
judicial review in contractual matters is
very limited. Moreover, the respondents
have the freedom to award the contract.
The fair play in the joints is a necessary
concomitant for an administrative body
functioning in an administrative sphere or
quasi-administrative sphere.

25. 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. In
this case, bid of the petitioner was rejected
on the ground of concealment of relevant
facts. No benefit can be awarded to the
bidder, who has not filed the bid with clean
hands. The attempts of the unsuccessful
bidder is with imaginary grievances,
wounded pride and business rivalry. The
petitioner by means of the instant writ
petition is trying to make a mountain out of
molehill
by
pointing
out
some
technical/procedural
violation,
and
persuade
the
court
to
interfere
by
exercising power of judicial review. Any
interference by this Court would amount to
holding up public works and would cause
huge loss to the State Exchequer. The
Hon'ble Supreme Court in a catena of
judgements has held that infrastructure
projects should not be halted for mere
technicalities. The Supreme Court has
categorically deprecates the practice of
interference by the High Court simpliciter
as a matter of course. Unless specific and
cogent grounds are made out that indicate
arbitrariness
and/or
mala
fide,
no
interference is warranted.

26. In the instant matter, since the
bid of the petitioner has been rejected on
the
ground of
concealment
and
no
objection on the bid of the respondent no. 7
was raised as per the time period provided,
we do not deem it fit to intervene at this
stage.

27. In view of the aforesaid facts
and circumstances, we see no merit in this
writ petition, and the same is accordingly,
dismissed.
----------
(2025) 11 ILRA 832
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.11.2025

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.
THE HON'BLE AMITABH KUMAR RAI, J.

Writ - C No. 10032 of 2002

M/S Maha Shakti Traders & Anr.
 ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Saumya Mandhyan

Counsel for the Respondents:
Manoj Kumar Mishra

Issue for consideration
The main issue was whether the payment can
be
denied
to
the
petitioner
for
work