( 1 ) HAVING heard learned Senior Counsel for the petitioner Sri S. Ramachandra Rao and for the respondents, Sri E. Manohar, at length, the writ petition itself is, with the consent of the parties, taken up for hearing.

( 2 ) THE validity of the invitation to tender vide specification No. BHEL-PS-SCT-911, dated 12-5-2000, is in issue in these proceedings at the instance of m/s. Srinivasa Constructions Ltd. The petitioner argues that the impugned notification is arbitrary, opposed to public interest and violative of Articles 14 and 300-A of the Constitution of India.

( 3 ) THE National Thermal Power corporation (NTPC), for the purpose of executing 2 x 500 M. W. units by name "simhadri Thermal Power Project" (STPP) at Paravada, Visakhapatnam District, floated a global tender. The 1st respondent bharat Heavy Electricals Ltd. , (BHEL) obtained the contract for the above work. In its turn the BHEL invited tenders for various components of the works in relation to the said project. These tenders having been finalised, sub-contracts were entered into by the BHEL with the various sub contractors including the petitioner herein.

( 4 ) ON the established factual scenario, considered in the context of the extant legal principles, both the contract of the BHEL with the NTPC as well as various sub contracts between the BHEL and the sub contractors, as also the invitation to tender, impugned in these proceedings, are purely commercial contracts and are not liable to be characterised as statutory contracts.

( 5 ) AMONG the works related to the STPP, certain components of the Raw Water reservoir were floated for tendering in the year 1998 under tender specification no. BHEL:ps:sct:809. The scope of the work tendered is set out in Vol. 11, section (c), Sheet 6, Part E of the tender and in specie is as under:" (I) Earthwork excavation in all types of soils including soft and hard rock; (ii) Earthwork in embankment filling; (iii) Providing and placing woven type geo Textiles; (iv) Providing and placing HDPE films; (v) Grid of stone drains; (vi) Miscellaneous work not specified above. "

( 6 ) THIS work is administratively labelled as 809. F work. The petitioner had also bid for this work. The work was awarded to the petitioner on 5-10-99 at the negotiated cost of Rs. 36. 38 crores. A contract has been entered into between the petitioner and the bhel. By its notification dated 6-1-2000 the bhel intimated its acceptance of the petitioner s offer subject to the terms and conditions set out in the letter.

( 7 ) THE note annexed to this letter is relied upon in support of the relief sought, which, to the extent relevant, reads as under:"note: The following rates shall apply for the items not covered above (a) Rate for complete item = + 12. 6% of CPWD Rates for the year 1997-98.

( 8 ) THE work which could broadly be termed as "levelling and filling the Raw water Reservoir Basin" is demonstrably and admittedly not an integral part of the work awarded to the petitioner under 809. F work, in respect of which acceptance of the bhel to the tender of the petitioner was communicated, by the letter dated 6-1-2000, supra.

( 9 ) THE challenge to the impugned notification of tender and the consequential relief sought by the petitioner is founded on the following premises of the petitioner pleaded and urged by the learned Senior counsel Sri S. Ramachandra Rao, in brief: (A) The Raw Water Reservoir work was tendered simultaneously with the adjacent levelling work of the plant which is in an extent of about 100 L. cum. By the time of finalisation of the work allotted to the petitioner, all the nearby lands were purchased and utilised. The petitioner quoted a very competitive rate of Rs. 57. 60 per cum, for the embankment work by balancing the over all economics of the various components of work including the consideration that earth for the formation of embankment could be utilised from what was available in the adjacent area. As the levelling work w