The government must have freedom of contract in setting the terms of tender, and the terms of invitation to tender are not open to judicial scrutiny, as long as the policy decision is not arbitrary, discriminatory, or tainted with mala fides.

The petitioner herein has filed the present petition seeking a writ of Certiorarified Mandamus calling for the records of the tender proceedings pursuant to the notification dated 10.09.2008 issued by the respondent herein.

2. The case of the petitioner is that the notification has been issued by the respondent on 10.09.2008 calling for tenders for the distribution of milk through the vehicles. However, in the said notification there is no condition to the effect that the insulated vehicles alone should be used. Therefore, the grievance of the petitioner is that without including the said condition that the insulated vehicles alone should be used for carrying milk the notification is bad in law and therefore, the tender should not be allowed to proceed with.

3. A counter affidavit has been filed by the respondent stating that the entire writ petition is misconceived in law and facts. The petitioner and his wife were the successful tenderers for the earlier period having granted three routes each. However they were not able to use the routes which have been allotted to them since they did not have the adequate insulated vehicles. Hence number of opportunities have been given to the petitioner and his wife followed by the show cause notices. Therefore, it is stated in the counter affidavit that having failed to produce sufficient insulated vehicles the petitioner cannot file the present writ petition. Moreover the jurisdiction of this Honble High Court to invoke power under Article 226 of the Constitution of India is very limited since the decision made by the respondent is one of a policy. According to the learned counsel, the decision has been taken to dispense with the insulted vehicles in view of the fact that faster vehicles are used and chilling plants have been constructed thereafter. Therefore, the respondent has thought it fit to remove the said condition since the same is unnecessary and unwarranted. According to the present system, the supplies are made faster and the said decision has been taken in view of the fact that number of routes have been increased. Therefore, the said decision taken based upon the relevant materials cannot be interfered with under Article 226 of the Constitution of India.

4. As rightly contended by the learned counsel for the respondent a decision made by the respondent which is a policy one cannot be interfered unless the same is tainted with mala fides and based upon irrelevant considerations. When the respondent has taken a conscious policy decision and come to the conclusion, the petitioner cannot challenge the same since he is not the person aggrieved. The petitioner cannot insist that a particular condition should be included in the notification as a tender condition. Moreover as seen from the counter affidavit the petitioner himself could not produce sufficient vehicles for the earlier period. In the judgment reported in 2001 (4) CTC 257 [Swamidhas vs. the Chief Engineer, National Highways] the Honble Division Bench was pleased to observed as follows:

"3. In contractual matters, the jurisdiction of the High Court under Article 226 of the Constitution of India is very limited. The learned counsel for the petitioners cited the judgment in R.D. Shetty v. International Airport Authority of India, AIR 1979 S.C. 1628 in support of their argument that in Governmental contracts, the power under Article 226 of the Constitution can be exercised if the action of the authorities is arbitrary as such arbitrary action violates the Fundamental Right of Equality guaranteed under Article 14 of the Indian Constitution. There cannot be any dispute with regard to the said legal proposition. In all the latter judgments of the Apex Court, the said ratio decidendi has been followed. But the question is whether imposition of the above condition No.5 is arbitrary. We are conscious of the fact that the appellants are being deprived of their rights to bid even at the threshold as they are denied the