Arun Mishra, C.J. - (1.) HEARD the learned Counsel for the parties. Both the intra Court appeals have been preferred questioning the legality of the order passed by the Single Bench setting aside the rejection of the offer of the respondent directing to award the contract in favour of the petitioner.
(2.) FACTS in short are that for the purpose of collection of toll tax in respect of second Hooghly Bridge known as, Vidyasagar Setu', the third re -tender floated on 10th July, 2012. The last date of submitting tender was 1st August, 2012. Initially, the tender notice was issued on 18.3.2012. Thereafter, first re -tender notice was issued on 9.4.2012. The second re -tender was floated on 21.5.2012. In first and second re -tender process, the respondent No. 9 viz., Konark Infrastructure Ltd. could not qualify the technical bid for not having requisite experience, turn over etc. Thereafter before third re -tender was resorted, which is followed by the fourth tender process, certain eligibility conditions had been relaxed with respect to having experience of collection of toll of 14 lanes to 10 lanes and proportionate deduction was made in the number vehicles from 50,000 to 35,700 and annual turn over from Rs. 40 crores to Rs. 28.6 crores. 3 This time, the respondent No. 9 owing to the relaxation of the aforesaid condition qualified the technical bid evaluation. The, financial bids were opened of three tenderers who were found fit for evaluation of tender process on 28th August, 2012. 4. The offer was invited in total lumpsum for a period of five years and break up of first instalment as upfront payment being 1/5th of the total lumpsum amount was also required to be mentioned in the prescribed form for making offer. 5. The bids offer in third re -tender for five years are as follows; (1) M/s. MEP Infrastructure Ltd.: Rs. 243.00 crores; (2) Konark Infrastructure Ltd.: Rs. 236.29 crores; (3) S.M.S. Infrastructure Ltd.: Rs. 216.00 crores; The bids offer in third re -tender for per year are as follows; (1) M/s. MEP Infrastructure Ltd.: Rs. 48.60 crores (2) Konark Infrastructure Ltd.: Rs. 47.29 crores (3) S.M.S. Infrastructure Ltd.: Rs. 43.20 crores 6. That the offer made by M/s. MEP Infrastructure of Rs. 243 crores was the highest offer for the total period of five years. However, in the form of offer as the break up offer of first instalment being 1/5th of the total lumpsum for five years was also required to be mentioned though in the figures, it was mentioned correctly that offer per year was 48.60 crores. However, in words, it was mentioned as forty six crores sixty lacs. 7. The Evaluation Committee of Hooghly River Bridge Commissioners, hereinafter referred to as 'HRBC, took the decision on 28th August, 2012 taking the figure mentioned in words of Rs. 46.60 crores as the upfront instalment for one year and multiplied it by five as the contract was for five years and reduced the total lumpsum offer made by the petitioner from Rs. 243 crores to Rs. 233 crores. Thereafter, it appears from the notesheet that a notice was issued on 29th August, 2012 to the respondent No. 9, Konark Infrastructure Ltd. whether they were ready to increase the offer from Rs. 236.295 crores to match the offer made by the petitioner of Rs. 243 crores. So that final decision on offers may be taken. Though this notice was intended to be sent by post but it appears that it was handed over to the representative of the respondent No. 9 in the office of the HRBC. He in the office itself submitted acceptance for raising the offer to Rs. 243 crores for a period of five years i.e. Rs. 48.60 crores per annum to match the offer made by the petitioner, MEP Infrastructure Ltd. However, at the same time, it was also mentioned by the representative of the respondent No. 9 in the aforesaid communication dated 29th August, 2012 that it was interested in making the toll collection on temporarily basis till finalization of the tender at the proportionate rate of Rs. 48.60 crores per annum on monthly upfront basis. It appears that the Vice Chairman had taken the decision to accept the offer made by the Konark Infrastructure Ltd. and wrote a letter on 30th August, 2012 to the State Government for approval under section 11(2) of the Hooghly River Bridge Act, 1969, hereinafter referred to as Act of 1969. 8. On 31.12.2008, HRBC wrote to the Konark Infrastructure Ltd. to take over the management on temporarily basis. It is pertinent to mention here that by 31.8.2012, no letter of intent had been issued to the respondent No. 9 Konark Infrastructure Ltd. There was no communication made by HRBC to Konark Infrastructure Ltd. about the acceptance of their revised offer made on 29th August, 2012. In the communication dated 31st August, 2012, it was mentioned that on the basis of final offer i.e. Rs. 243 crores for five years, toll collection on temporary basis was awarded on temporary basis for a period of 15 days from midnight of 31st August, 2012 to midnight of 15th/16th September, 2012 at the existing rate of notified vehicles. Before taking electrical toll collection system on the toll plaza, the respondent No. 9 is required to deposit Rs. 47.295 as upfront payment for 15 days. It is pertinent to mention that the respondent had not executed any bank guarantee, no LOI was issued to it. Government had not approved the offer. Other formalities envisaged under letter of intent were also not completed. However, for the reasons best known to the HRBC even before approval before issuance of LOI, temporary collection of toll was given to respondent No. 9 Konark Infrastructure Ltd. 9. The communication dated August 29, 2012 was issued by the Hooghly River Bridge Commissioners to the petitioner, namely, M/s. MEP Infrastructure Developers Private Limited to the effect that their offer of Rs. 243 crores of total bid price as lump sum for the entire contract period of sixty months has been treated to be Rs. 233 crores on the basis of yearly instalment. It was mentioned that Rs. 46.60 crore in words and Rs. 48.60 crores in figures as upfront payment of the first year being one -fifth of the total lump sum offer. As such, there being discrepancy in the financial offer, the Hooghly River Bridge Commissioners was not in a position to accept their financial offer. 10. After receiving the aforesaid communication, on September 3, 2012, the writ petition was filed in this Court. On September 4, 2012, the learned Single judge of this Court directed that toll collection being made by the respondent No. 9 in the writ petition, namely, M/s. Konark Infrastructure Limited would be governed by the final decision of the case. Thereafter, nothing has been done. The Government has not accorded approval to the offer made by the Konark Infrastructure Limited. Neither any letter of intent had been issued nor the contract had been signed and the Konark Infrastructure Limited admittedly is continuing to operate on temporary basis for last approximately eight months. 11. The writ petition has been filed by the petitioner praying for quashing of the impugned communication dated August 29, 2012 issued by the Hooghly River Bridge Commissioners by which the petitioner has been eliminated from the tender process. The writ petitioner has further prayed for an injunction from giving effect to the Letter of Intent issued in favour of the respondent No. 9. The writ petitioner has also prayed for a direction prohibiting the respondents No. 1 to 8 from signing the contract agreement in favour of the respondent No. 9 and for further direction that the toll collected by the respondent No. 9 be kept in an escrow account. The writ petitioner has also prayed for other suitable reliefs, as may be considered appropriate by this Court. 12. The writ petition has been filed mainly on the ground that the lump sum bid price of the petitioner was correct both in figures and in words, since emphasis in the terms and conditions of Tender was lump sum highest bid price for the entire contract period. Thus, reduction of offer made by the petitioner to Rs. 233 crores from Rs. 243 crores was in permissible and opportunity ought to have been given to invoke clause 23 of volume 1 of the tender document to clarify the yearly instalment in case it was required. The petitioner has contended that the decision had been taken in a hot haste manner without giving opportunity to the petitioner to clarify the position. The petitioner was eliminated from the tender process arbitrarily and in colourable exercise of power. An unfair bargain was meted out to the petitioner in appointing the respondent No. 9. Since no opportunity of clarification was given as per clause 23 of volume 1 of the tender document, the elimination of the petitioner from the tender process cannot be said to be in accordance with law. It was bona fide and inadvertent mistake in mentioning the upfront first instalment in words. 13. The stand taken in the returns filed by the respondents except the State of West Bengal is that as per clause 26 of volume 1 of the tender document, the decision has been rightly taken. If there is any discrepancy in the offer quoted in figures and in words, the offer in words will be treated as offer. Thus, the offer in word is taken to be 46.60 crores per annum, the offer made by the petitioner rightly treated as Rs. 233 crores for five years and there is discrepancy in the financial offer, the bid of the petitioner was rightly not taken into consideration. 14. It is further contended by the respondent that the decision has been taken by the Hooghly River Bridge Commissioners in the public interest. The Konark Infrastructure Limited was asked to raise the lump sum bid to Rs. 243 crores, which it has raised. Before approval was granted and letter of intent was issued, the writ petition was filed on September 3, 2012. As such, the respondent No. 9 was operating on temporary basis on the basis of offer raised by them to Rs. 243 crores for the period of five years. In such matter, the scope of judicial review is limited. The Court cannot sit in appeal unless there is competing public interest to safeguard the revenue. 15. It is also submitted by the respondent that in the instant case, there is no loss of public exchequer, the second bidder was asked to match the higher bid made by the petitioner. There is no scope for correction of bona fide mistake or otherwise in the offer, all the clauses are to be strictly interpreted. In the case of discrepancy in the financial offer, the offer is liable to be rejected. Clause 23 could not have been invoked. The respondents are bound by the terms and conditions of the tender notice and are expected to adhere to the same strictly. Thus, there is no illegality in the action taken by the respondents. 16. Shri Shaktinath Mukherjee, learned senior Advocate appearing on behalf of M/s. Konark Infrastructure Limited and Mr. Partha Sarathi Sengupta, learned senior advocate appearing on behalf of the Hooghly River Bridge Commissioners, submitted that the learned Single Judge erred in law in making interference. There is no proper interpretation made of clause 26 of volume 1 and clause 23 of volume 1 of the tender document. The directions which had been issued by the learned Single Judge to accept the offer of the petitioner and to award the contract of Rs. 2 crores additional amount cannot be said to be justified. The writ petition was premature and could not be said to be maintainable before the approval having been granted by the State Government. There was no indecent haste on the part of the Hooghly River Bridge Commissioners. There was no illegality or impropriety in issuing authorisation on temporary basis to collect the toll till finalisation of the tender. There was nothing wrong in submitting handwritten offer to enhance the bid as required on August 29, 2012. The portion of the offer in hand writing could not have been objected to. As a matter of fact the Hooghly River Bridge Commissioners was making all attempt to have a new deal at a higher rate to commence from September 1, 2012 and the Konark Infrastructure Limited was the only party to deal with, as the contract with the previous contractor, namely, the respondent No. 10, has already come to an end and even after expiry of one year as contract period the respondent No. 10 was collecting toll on temporary basis till midnight of August 31, 2012. The learned Single Judge has converted the Court itself into a tender accepting authority by laying down new terms and conditions accepting the tender of the petitioner. The contract awarded by the learned Single Judge in favour of the writ petitioner was beyond the scope of judicial review. No prayer for setting aside the decision taken in favour of the Konark Infrastructure Limited was made in the writ petition. As such, the learned Single Judge has proceeded beyond the reliefs prayed for in the writ petition and has granted a relief, which was not asked for. 17. It was further submitted on behalf of the appellants that the writ petitioner had participated in the third Re -tender after relaxation of the eligibility criteria. The earlier three tenders failed because of the disinclination of the participants to offer the bid price even upto the reserved price of Rs. 45 crores. Thus, the relaxation condition was appropriate and the same was not done in order to favour the respondent No. 9. By relaxation better offers could be accepted. It was submitted that the public interest should not suffer. The allegations as levelled in the writ petition cannot be said to be based on bona fide rather they are outcome of mala fide. There would be no loss to the State exchequer and action cannot be said to be against public interest for unlawful gain of an illegal benefit conferred in any manner whatsoever. The earlier offers made by the tenderers were much lower, but when the respondent No. 9 came into the fray, the offers were raised. In view of Clause 26 (volume 1) of the tender document, the correction of errors made in the financial offer is not permissible. There cannot be any clarification of error also as provided in clause 26. The offer mentioned in words is to prevail and could not have been ordered to be corrected under clause 23 (volume 1) of the tender document. Various other clauses were referred to take home the submissions raised on behalf of the appellants. It was also submitted that the view taken by the Hooghly River Bridge Commissioners was a possible one, if not a plausible one. It could not be treated to be absurd, irrational or unreasonable applying the Wednessbury's principle. The reserved price is not the price for five years but Rs. 45 crores is reserved price for a year. Thus, the yearly figure has rightly been taken into consideration to work out lump sum offer made by the petitioner. Various decisions have been relied upon on behalf of the appellants to take home the aforesaid submissions. 18. Mr. Gopal Subramanium, learned senior counsel appearing on behalf of the writ petitioner/respondent No. 1, has submitted that it is a case where undue favour has been extended to the respondent No. 9/appellant at every stage. Conditions of eligibility were relaxed so as to. accommodate the respondent No. 9 in the technical evaluation. Reference has been made to various clauses of the tender. Clause 11 relating to "offer prices". Clause 14 dealing with format and signing of offer and correction with the permission of the employer. Clause 23 pertaining to clarification of offer. Clause 25 providing when offer is liable for rejection. Clause 26 regarding to correction of errors. Clause 29 reserving with employer right to accept any offer and to reject any or all offers. Clause 30.1 as to issue of letter of intent (LOI). Clause 30.2 for signing of agreement. Clause 31 mentioning issue of letter of acceptance. 19. Learned Senior Counsel has emphasised that total bid price in lump sum for the entire contract period of sixty months was invited and only upfront payment of first year instalment being 1/5th of the total lump sum offer was also required to be mentioned was only part of calculation to be made. The lump sum offer as contemplated of 243 crores was rightly mentioned in figure as well as in words. There was no such discrepancy in the offer for five years even with respect to the first year instalment in figures the amount was correctly mentioned, in words there had been mistake. The expression in offer instalment being 1/5th of the total lump sum offer was enough to safeguard the interest of the respondents. The 1/5th of amount of lump sum bid was assured payment towards first year instalment. Thus, discrepancy in the instalment that too while mentioning in the words could have been corrected within the purview of Clause 23 (Vol. 1) of tender document as "offer" can be corrected within Clause 23 in case of mistake which would include the mistake in words as to the "upfront payment" of first instalment being 1/5th of total lump sum. 20. The learned Senior Counsel has also relied upon the other terms and conditions contained in Volume II of the tender documents. Clause 1.3 containing "Letter of Intent". Clause 1.12 defining "Lump sum specified upfront payment". Clause 10 providing for 'payment of lump sum upfront payment'. Clause 10.1 as to lump sum upfront payment of first year's instalment being 1/5th of the total lump sum offer. Clause 23 of the said Volume II dealing with contract period. Clause 26 relating to payment of 1st year lump sum upfront payment being 1/5th of the total bid amount. Clause 34 as to closure of contract at the option of the contractor and Clause 38 for giving authorisation of toll collection system. 21. It was also submitted by the learned Senior Counsel appearing on behalf of the respondent No. 1 that as apparent from the letter dated 29.8.2012, Annexure R -2/2 to the affidavit -in -opposition filed by the respondent No. 2, no decision had been taken with respect to the financial offers. Even before that the respondent No. 9 was asked to increase the value of offer to Rs. 243 crores for five years. It was further submitted that the respondent No. 9 suo motu has given the offer to collect toll on temporary basis till finalisation of the tender at the proportionate rate of Rs. 48,600 crores per annum on monthly upfront basis. Even before issuance of LOI or grant of approval by the State Government, award was made on temporary basis to the respondent No. 9 to collect toll vide communication dated 31st August, 2012. Even without obtaining payment of Rs. 2,02,50,000/ - plus 2% TCS as upfront payment for 15 days, the respondent No. 9 was favoured to handing over all accessories, equipments for toll collection system, toll counters etc. at 12 -00 midnight of 31st August, 2012 at the expiry of extended period of the respondent No. 10. In fact the upfront amount for 15 days had been deposited on 1st September, 2012; but even before that the possession had been handed over with effect from midnight of 31.8.2012 and the procedure adopted to give authorisation to respondent No. 9 to make the temporary collection of toll is clearly arbitrary and act of favouritism and cannot be said to be sustainable. At every stage, the respondent No. 9 had been extended undue favour. Higher offer was made by the respondent No. 9 in the office itself though letter dated 28.8.2012 of HRBC was proposed to be posted, it was not so done. Thus, undue haste has been shown at every stage in the decision making process and highest offer of the petitioner was rejected without even seeking clarification and invoking Clause 23 by calculating the lump sum bid amount in converse manner than permissible. The learned Senior Counsel has submitted that in the facts of the case the parties may be relegated to the stage where they were supposed to be on 28th August, 2012 after submission of their bids and evaluation of the bids 28.8.2012, cannot be said to have been done in lawful manner in the instant case. The bid of the petitioner could not have been reduced to Rs. 233 crores in the method and manner the computation has been done by the respondent, H.R.B.C. Thus, the decision was not only tainted but also is an act of favouritism and is liable to be quashed. H.R.B.C. and the State Government may be directed to take steps so as to permit the correction of the offer in words of the first year's upfront instalment if at all required and then to proceed ahead to consider the bids made by the rival tenderers. It was also submitted that Court has to consider this case from anvil of not only by applying the Wednesbury principle but also the doctrine of proportionality while adjudging the legality of decision taken by the authorities and then in case the Court finds that the decision is not correct the Court may interfere in suitable cases. 22. It was further submitted by the learned Senior Counsel for respondent No. 1 that since toll has been illegally collected in the facts and circumstances of the instant case, it would be appropriate to direct the appellant to deposit at least 50% of the profit earned for rendering legal services for poor with the Legal Services authority. It was observed in the interim order that it would be open to the respondent No. 1 to claim compensation in case the appeal is dismissed while granting order of status quo. It was submitted by the learned Counsel appearing on behalf of the private contractor respondent No. 10 that opportunity should have been to the respondent No. 10 to take part in the negotiation if at all negotiation was necessary and also to match the offer made by the petitioner. He has further submitted that the respondent No. 9 has been shown undue favour as temporary arrangement under which the respondent No. 9 in making toll collection no formalities have been adhered to. When respondent No. 10 was collecting toll on temporary basis the Bank Guarantee was still with the H.R.B.C. and the same had been released only after 31st August, 2012 and the respondent No. 9 had been given the authorisation to make collection without execution of Bank Guarantee and other deposits. 23. The main question for consideration is whether the respondent, H.R.B.C, was right in view of the various clauses of the tender document in not calling the petitioner to clarify its upfront instalment for the first year and whether the offers were invited of total lump sum period of five years, i.e. 60 months and the discrepancy in the instalment amount for the first year upfront payment which could not have been less than 1/5h whether H.R.B.C. could have reduced the total lump sum bid price for sixty months of 243 crores to 233 crores, particularly without seeking clarification from the petitioner by invoking clause 23 (Vol. 1) of tender document. 24. Before dilating upon the aforesaid question, it is necessary to consider the various clauses contained in the tender document. Volume I, section 2 of the tender document contains instructions to offerers. Clause 11 deals with "offer price". As per Clause 11, a lump sum highest bid price for the entire contract period is required to be mentioned. Clause 11 is quoted below: 11. The offer shall quote his offer, in the form of offer, as a lumpsum highest bid price for the entire contract period to Hooghly River Bridge Commissioners in Column -I, section 3B. 11.1 The offer price quoted by the offerer shall include all the costs towards Collection of Toll at Vidyasagar Setu including handling, operation, maintenance, renewing and renovation, upgrading of existing electronically operated Toll Collection system as per requirement with reference to tender documents, required for the work of toll as defined in clause 2.0 above. The offerer shall provide for all superintendence, labour, material, plant, equipment, environmental measures and all other things required for work of toll collection including all taxes, duties, royalties, octroi and other charges payable under the law. 11.2 Offer shall be quoted in words as well as in figures. (emphasis applied by us) 25. Clause 14 deals with format and signing of offer. Obviously, it is at the stage of pre -submission of the tender documents. Clause 14.3 has been pressed into service. As per the said clause offer shall contain no alterations, omissions or additions except those to comply with instructions issued by the employer. Clause 14.3 reads thus: 14.3 The offer shall contain no alterations, omissions or additions, except those to comply with instructing issued by the Employer, or as necessary to correct errors made by the offerer, in which case such corrections shall be initialled by the person or persons signing the offer. 26. What follows from Clause 14.3 is that alterations, omissions or additions can be made only in compliance of the instructions issued by the employer. 27. Clause 23, Volume I, section 2 deals with clarification of offer. It is open to the employer to ask the offerers to assist in examination and evaluation of offers and to ask the offerers individually for clarification of their "offer" including break -up of costs. Clause 23 reads thus: 23. Clarification of Offer. To assist in examination and evaluation of offers, the Employer may ask the offerer individually for clarification of their offer including breakup of costs, reasons in case of very high/very low offer etc. The request and the response thereof shall be in writing. 28. Clause 26 deals with correction of errors. It provides that if there is any discrepancy in the "offer" in figures and in words, the offer in words will be treated as offer. Clause 26 is as follows: 26. Correction of Errors: If there is any discrepancy between the offer quoted in figures and in words, the offer in words will be treated as offer. 29. Volume I, section 3 of the tender documents contains the provisions in section 3A, "Information to Offerers". In Item No. 11 provides for mode of payment of instalment (annual). The lump sum offer along with tax collection at source as applicable for the entire period shall be deposited for the first instalment as 1/5th of the total accepted bid price. The aforesaid information to the offerers is thus: 11. Mode of payment of instalment (Annual): The lump sum offer along with Tax Collection at source (T.C.S.) as applicable for entire five years shall be deposited for first instalment as 1/5th of the total accepted bid price and subsequent instalments at the rate of 1/5th of the total accepted bid price to be paid for each year. Along with the payment of first instalment, Bank Guarantee against payment of instalments for the balance four years valid for 63 months shall be deposited. (Emphasis applied by us) 30. Volume I, section 3B of the tender documents contains the provisions with respect to offering a sum by way of total bid prices lump sum for the entire contract period of 60 months making a lump sum upfront payment of first year's instalment being 1/5th of the total lump sum offer in the form of demand draft. Petitioner has made the offer in following manner: ...We offer a sum of Rs. 2,43,00,00,000/ - (Rupees Two hundred Forty -three Crores only) by way of our total bid price as lump sum for the entire contract period of 60 (sixty) months making a lump sum upfront payment of 1st year's instalment amounting to Rs. 48,60,00,000/ - (Rupees forty -six crores sixty lakhs only) being 1/5th of total lump sum offer in the form of Demand Draft as stated in the tender document along with Bank Guarantee towards payment of instalments for the balance four years, being 4/5th of the total bid price valid for 63 months. 31. The other terms and conditions mentioned in Volume II of the tender documents also refer to lump sum in Clause 12. The same is quoted below: 12. Lump Sum Specified upfront payment" means the first payment for one year and the submission of Bank Guarantee for the remaining period of four years of the first years contact period. 32. Clause 10 also deals with the payment of lump sum upfront payment and bank guarantee for four years and only thereafter commencement order for toll collection be issued by H.R.B.C. Clause 10 is as follows: 10. Payment of Lumpsum Upfront Payment: After the receipt of LOI from HRBC, the specified first year's lump sum upfront payment and BG for balance four years of contract period valid for 63 months shall be made within 15 days. Only thereafter commencement order for toll collection by contractor shall be issued by HRBC through LOA. 33. Clause 23 deals with contract period is quoted below: 23. Contract Period: The period of the contract shall be 60 months from the date of order of commencement of toll collection issued through LOA by HRBC 34. Clause 26 deals with payment is as follows: 26. Payment: The 1st year Lump sum upfront payment being 1/5th of the total bid amount stipulated in the Contract along with BG for balance 4 years shall be paid within 15 days from the date of notice(LOI) issued by HRBC. (emphasis applied by us) 35. Clause 26.2 also requires submissions of lump sum bid price for the entire contract period of 5 (five) years is as follows: 26.2 the Contractor should offer his lump sum bid price for the entire contract period of 5 (five) years taking into consideration the growth of traffic crossing the toll plaza all over the contract period. (emphasis applied by us) 36. What emerges from Clause 11 of Volume 1 section 2 of the tender documents that the offerer shall quote his offer in the form of offer, as a lump sum highest bid price for the entire contract period. The offers were not invited on yearly basis or unit wise basis. Offer was clearly invited on lump sum basis for sixty months and thus lump sum offer was required to be mentioned in words as well as figures as provided in Clause 11.2. 37. It is also provided in Volume I section 3A Item 11 that lump sum offer as applicable for the entire five years shall be deposited for first instalment as 1/5th of the total accepted bid price. The emphasis is on the total accepted bid price and not for the yearly instalment. The instalment has to be calculated and worked out as 1/5th of the figure of the total lump sum accepted bid price for 5 years. The emphasis is on the total accepted bid price and total accepted bid price in the instant case of the petitioner was admittedly highest, i.e. Rs. 243 crores. 38. When we come to form of offer contained in Volume I, section 3B of the tender document, we find from the reading of the aforesaid extracted portion filled by the petitioner. He has correctly mentioned the figure of Rs. 243 crores in figure as well as in words by way of total bid price for the entire contract period of sixty months. However, mistake has been committed in working out first year's upfront instalment. In figure he has mentioned correctly the first year's instalment 1/5th of total bid price that is Rs. 48.60 crores, but in words it was wrongly mentioned as Forty -six crores sixty lac. However, at the same time, in the printed form of offer after the aforesaid words, it has also been mentioned "being 1/5th of the total lump sum offer'' 1st year upfront payment. It is only 1/5th of the total lump sum offer. The figure of 1st year could not have been less than 1/5th of the total lump sum offer. It was not open to any of the tenderers to submit any different figure than 1/5th of the total lump sum. It was clearly calculating part of offer. It was only arithmetical calculation which was required to be mentioned again. Even in the absence of the column of the first instalment to be mentioned in figure and in words, mentioning of being 1/5th of the total lump sum offer was enough to make lump sum bid. The upfront payment of 1st year could not have been treated to be less than 1/5th of the total lump sum offer. Thus, in the circumstances, when apparently clerical mistake had been committed while mentioning upfront payment of first year's instalment in words, though it was clarified in the form being 1/5th of the total lump sum offer, in our considered opinion, it was not open to the respondent HRBC to reduce the offer made by petitioner of Rs. 243 crores for 5 years to Rs. 233 crores in the facts of the instant case. 39. When we consider the definition of lump sum given in Volume II of the tender documents quoted above, it has clear co -relation with entire period, payment for one year and submission of Bank Guarantee for the remaining period of four years of the five years' contract period. Three is no severable contract period for first year. It is the entire lump sum contract for five years. The emphasis on "lump sum" upfront payment for the first year is in fact intend to achieve the payment of first instalment only of the total lump sum bid for sixty months. Clause 10 of Volume II of the tender documents as quoted above, makes it clear that first year's lump sum upfront payment cannot be less than 1/5th of the total lump sum for sixty months. 40. Clause 10 of Volume -2 quoted above also makes it clear that first year lump sum upfront payment has to be made which can not be less than 1/5th of the total lump sum for 60 months and bank guarantee for balance period of contract is valid for 63 months has also to be furnished before the order for toll collection to be issued by HRBC. Clause 23 of the volume -2 also contains the period of the contract to be 60 months is not divisible contract or civil wise contract per annum. Here in the instant case intention is to secure the highest bid price for the entire period. As per Clause 6.2 of the Volume -2 of the tender document also contractor has to offer lump sum bid price for the entire period of five years taking into consideration the growth of traffic crossing toll plaza of the contract period. Thus, the essence of the various clauses of the tender document contained in Volumes -1 and 2 is of lump sum bid price for the entire contract period which was correctly mentioned in words and figures in the instant case. Thus, it was permissible to reject the aforesaid offer by HRBC. 41. Coming to the clause 14.3 dealing with no addition and alternation to be made except those as per instructions issued by the employer. Thus, power has been reserved by the employer to issue such an instruction to make correction and clarification of offer. Significantly, it was not disputed by learned counsel, appearing on behalf of HRBC that 'offer' in Clause 23 would include the correction of financial offer also. In our opinion, even if we do not consider the aforesaid concession made by the learned counsel and independently construe clause 23 with respect to clarification of offer along with clause 26, it is apparent that as per clause 23 while offers are examined and evaluated it is open to the employer to ask the offerers individually for clarification of the offer including brake up of cost though as per clause 26 if there are any discrepancies between words and figure, the words will be treated as offer but here the offer, in our opinion, was invited for total lump sum 60 months period which was significant and dominant. There was no discrepancy in the offer so made of 243 crores for 60 months in figures and in words. Upfront payment of first instalment, being 1/5th of total lump sum was ensured by the form of offer contained in Volume -1 section 3B quoted above. Emphasis on the 1/5th of the amount, which amount of 1/5th of total lump sum was assured. In any case it was only arithmetical mistake committed by the petitioner while mentioning the figure in words of first year upfront payment. In upfront payment also, amount was correctly mentioned in figures as 48.600 crores while in words it was mentioned as 46 crores 60 lakhs. Thus, apparently, in our opinion, when we interpret both the provisions contained in Clause 23 and 26 in harmony we find no conflict between the provisions contained in Clauses 23 and 26. Such an arithmetical mistake, which was in consequential ought to have been permitted to be corrected by seeking clarification by the HRBC. By not invoking Clause 23, in the facts of the instant case considering the various clauses, in our considered opinion, illegality has been committed while rejecting the highest bid made by the petitioner. Thus, without entering into the serious allegations of favouritism etc., which have been mentioned in the petition and argued before us, in our considered opinion, the dispensation, in the offer, was not such which could have caused any detriment of the revenue as 1/5th of the revenue was otherwise secured the payment of 1st instalment could not have been less than 1/5th as mentioned in the form of offer. No different amount could have been quoted and less than 1/5th of the amount of total lump sum which amount was assured. Thus, it was not open to the respondent to take the figure in words of the upfront payment of the first instalment and to work out the total lump sum bid price for the entire contract period of 60 months in converse manner instead of taking 1/5th of the lumpsum amount as first monthly upfront payment as provided in the terms of the tender. The HRBC has clearly acted illegally and arbitrary for the reasons best known to them. When such is the situation, the Court is bound to make interference in the matter as laid down by the Hon'ble Supreme Court in Chairman, All India Railway Recruitment Board & Anr. v. K. Shyam Kumar & Ors., reported in : (2010)6 SCC 614 relied upon on behalf of respondent No. 1. The Apex Court while dealing with the Wednesbury principle of reasonableness and principle of proportionality has held: 28. The position in English Administrative Law is that both the tests, that is, Wednesbury and proportionality continue to coexist and the proportionality test is more and more applied, when there is violation of human rights and fundamental freedoms and the Wednesbury principle finds its presence more on the domestic law when there is violation of citizens' ordinary rights. Proportionality principle has not so far replaced the Wednesbury principle and the time has not been reached to say goodbye to Wednesbury much less its burial. 31. S.B. Sinha, J. as His Lordship then was, speaking for the Bench in State of U.P. v. Sheo Shanker Lal Srivastava after referring to the Judgement of the Court of Appeal in Huang v. Secy. Of State for the Home Deptt. R. (Dly)v. Secy, of State for the Home Deptt., opined that Wednesbury principle may not now be held to be applicable in view of the development in constitutional law and held as follows: (Sheo Shanker case, SCC p.285, paras 24 -25) 24. While saying so, we are not oblivious of the fact that the doctrine of unreasonableness is giving way to the doctrine of proportionality. 25. It is interesting to note that the Wednesbury principles may not now be held to be applicable in view of the development in constitutional law in this behalf. See, for example, Huang v. Secy. Of State for the Home Deptt. wherein referring to R. (Daly) v. Secy. Of State for the Home Deptt. It was held that in certain cases, the adjudicator may require to conduct a judicial exercise which is not merely more intrusive than Wednesbury, but involves a full -blown merit judgement, which is yet more than R. (Daly), requires on a judicial review where the Court has to decide a proportionality issue. 37. Proportionality requires the Court to judge whether action taken was really needed as well as whether it was within the range of courses of action which could reasonably be followed. Proportionality is more concerned with the aims and intention of the decision -maker and whether the decision -maker has achieved more or less the correct balance or equilibrium. The Court entrusted with the task of judicial review has to examine whether decision taken by the authority is proportionate i.e., well balanced and harmonious, to this extent the Court may indulge in a merit review and if the Court finds that the decision is proportionate, it seldom interferes with the decision taken and if it finds that the decision is disproportionate i.e. if the Court feels that it is not well balanced or harmonious and does not stand to reason it may tend to interfere. 42. We will now apply the proportionality test to the three alternatives suggested. Principle of proportionality, as we have already indicated, is more concerned with the aims of the decision maker and whether the decision maker has achieved the correct balance. The proportionality test may require the attention of the Court to be directed to the relative weight according to interest and considerations. When we apply that test and look at the three alternatives, we are of the view that the decision -maker has struck a correct balance in accepting the second alternative. The first alternative was not accepted not only because such a process was time -consuming and expensive, but nobody favoured that option, and even the candidates who had approached the Court were more in favour of the second alternative. Applying the proportionality test also in our view the Board has struck the correct balance in adopting the second alternative which was well balance and harmonious. 42. It is open to the Court that decision taken by the authorities is disproportionate, i.e. if the Court feels that it is not well balanced and harmonious and does not stand to reason it may tend to interfere. The principle of Wednesbury reasonableness has also to be applied. The proportionality is more concerned with the aims and intention of the decision maker and whether the decision -maker has achieved more or less the correct balance or equilibrium. The Court has also to consider while applying the test of proportionality to the relative weight according to interest and consideration. Applying the principle of Wednesbury reasonableness or proportionality as laid down in Chairman, All India Railway Recruitment Board & Anr. v. K. Shyam Kumar & Ors., reported in : (2010)6 SCC 614, in our opinion, the decision taken by the HRBC does not qualify to the test laid down by the Apex Court on the aforesaid aspects. 43. In the instant case, the highest bidder was kept out of the fray by reducing lump sum bid from 243 crores to 233 crores and thereafter the respondent No. 9 was asked to match the said offer and thereafter without issuing LOI or approval of the contract under section 11(2) of the Act of 1969 for the State Government, the respondent No. 9 was permitted even before depositing even a single penny or submitting any kind of bank guarantee to make temporary collection of toll that too not at the initiative of the HRBC but at the request made by respondent No. 9. How and why without seeing prior deposit of the amount or even asking for the bank guarantee and issuance of LOI or waiting for approval of its offer, the respondent No. 9 was given authorization to start toll collection from mid night of 31st August/1st September, 2012 is not understandable and was clearly an act of favouratism. He has made payment of upfront amount of 15 days on 1st September, 2012. It is also settled that in the matter of grant of ad hoc contracts, the requirement of fairness and fair action is not ruled out as per mandatory Article 14 of the Constitution of India. The earlier contractor Respondent No. 10 was working on ad hoc basis for making temporary collection after expiry of contract period of approximately one year, no doubt at somewhat lesser amount but offer was not made to him whether he was ready to collect toll on temporary basis as suggested by the respondent No. 9. Respondent No. 10 had submitted bank guarantee, which was not released till 31st August, 2009 after the temporary collection period came to an end. But in the instant case the respondent No. 9 had been favoured without issuance of LOI, without signing the contract, without approval of the State Government and without furnishing bank guarantee and prior deposit to make the toll collection for last eight months. 44. Grant of temporary contract also indicates that respondent/HRBC was bent upon to favour the respondent No. 9 and to accept its bid and evaluation committee has in all unreasonable manner reduced lump sum offer made by the petitioner No. 1 and reduced it from Rs. 243 crores to Rs. 233 crores without offering opportunity for clarifying under Clause 23 the upfront payment of first instalment for the first year; although the maximum amount of 1/5th of the total bid price i.e. 48.60 crores was assured in the form of offer and as per various clauses. 45. In our considered opinion it was not appropriate for the respondent/HRBC to give temporary award of contract to the respondent No. 9 in the aforesaid facts and circumstances of the case. It is apparent that act in arbitrary and outcome of favouritism. Even if we ignore the relaxation of condition for securing higher bid, the subsequent conduct indicates that action of HRBC cannot be said to be fair as envisaged in Art. 14 of the Constitution. 46. It was submitted by Mr. Shaktinath Mukherjee, learned Senior Counsel, that the writ petition was premature and could not have been entertained prior to grant of approval by the State Government. Learned Senior Counsel, has relied on (Dr. G. Sarana v. University of Lucknow & Ors.) : AIR 1976 SC 2428 and (Mrs. Kunda S. Kadam v. Dr. K.K Soman & Ors.) : (1980)2 SCC 355. 47. The aforesaid submission raised cannot be accepted as against the decision taken by the Evaluation Committee no remedy is provided under the terms of the NIT contained in two volumes. Apart from that while approving the highest bid we are not convinced that it is open to the State to go into the merits of the various decisions taken whatever that may be even if that remedy could be said to be available. Once the writ petition has been decided on merits we are not inclined to entertain the submission as available of alternative remedy is not absolute bar for entertaining writ petition. Once decision has been rendered on merits by Single Bench we are not inclined to relegate the petitioner to an alternative remedy even if available and to hold that petition so filed, was premature one. In the case rejection of bid of the petitioner has been communicated. 48. The decision relied upon by Shri Shaktinath Mukherjee, the learned Senior Counsel, in Dr. G. Sarana v. University of Lucknow, reported in : AIR 1976 SC 2428 in which it has been laid down that as the recommendation of the Selection Committee has still to be scrutinized by the Executive Council of the University and either accepted or rejected by it and other remedies by way of representation to the Executive Council and an application for reference of the matter under section 68 of the Uttar Pradesh Universities (Re -enactment & Amendment) Act, 1974 to the Chancellor was still open to the appellant. The aforesaid dictum is not applicable as it was not the case of recommendation to reject bid of the petitioner but decision has been taken and rejection of the bid has been communicated to the petitioner and no specific alternative remedy is available in the instant case. Thus, the decision has no application in the instant case. 49. Learned senior Counsel Shri Mukherjee has also relied upon the decision of the Hon'ble Supreme Court in Mrs. Kunda S. Kadam v. Dr. K.K Soman & Ors., reported in : (1980) 2 SCC 355 in which the Public Service Commission had made a recommendation which was still pending for consideration and final decision by the concerned department had not been taken as such it was held to be premature. In the instant case final decision has been taken and has also been communicated, as such the decision has no application. 50. Thus, we are of the considered opinion that the petition so filed could not be said to be premature and has rightly entertained and decided by the Single Bench on merits of the case. In the facts and circumstances of the case and the provisions contained in the contract, the writ petition could not be termed to be premature. 51. Learned Senior Counsel, Shri Mukherjee, appearing on behalf of the appellant argued that the question of rejection of the bid on account of error has been considered by the Hon'ble Supreme Court and once such glaring mistake has been committed, material term of the offer itself could not have been ordered to be corrected. Reliance has been placed on a decision of the Hon'ble Supreme Court in West Bengal State Electricity Board v. Patel Engineering Co. Ltd. & Ors., reported in : (2001)2 SCC 451 in which it was laid down that even the mistake committed in material term though such mistake is always unintentional could not have been ordered to be corrected in view of the specific clauses contained in the bid document of the conditions of the tender. 52. In Patel Engineering (supra) Clauses 27 and 29 had been taken into consideration by Their Lordships. Clause 27 of the contract in the aforesaid case provided that the request for clarification and the response shall be in writing or by cable, but no change in the price or substance of the bid after opening the price bid shall be sought. Clause 29 dealt with the correction of errors as per condition No. 29.1(a) where there is a discrepancy between the amounts in figures and in words, the amount in words will govern. Clause No. 29.1(b) provided for where there is a discrepancy between the unit rate and the line item total resulting from multiplying the unit rate by the quantity, the "unit rate will govern". The aforesaid clauses 27, 27.1, 29 and 29.1 in the case of Patel Engineering Co. Ltd. (supra) are as follows: Cl. 27. Clarification of Bids. Cl. 27.1 To assist in the examination, evaluation and comparison of bids, the employer's authorised representative may, at his discretion, ask any or all bidders for clarification of his/their bids, including breakdowns of unit rates, technical information, documents and materials after opening of the bid. The request for clarification and the response shall be in writing or by cable, but no change in the price of substance of the bid after opening the price bid shall be sought, offered or permitted excepts required to confirm the correction of arithmetical errors discovered by the employer's authorized representative in the evaluation of the bids in accordance with clause 29 of the ITB. Cl. 29. Correction of Errors Cl. 29.1 Bids determined to be substantially responsive will be checked by the employer's authorised representative for any arithmetical errors. Errors will be corrected by the employer's authorised representative as follows: (a) where there is a discrepancy between the amounts in figures and in words, the amount in words will govern; and (b) where there is a discrepancy between the unit rate and the line item total resulting from multiplying the unit rate by the quantity, the unit rate as quoted will govern; (c) where there is a discrepancy between figures and in words of a unit rate, the unit rate as quoted in words will govern. (emphasis applied by us) 53. Since in Patel Engineering (supra), there was a discrepancy between the unit rate and the line item total resulting from multiplying the unit rate by the quantity, the unit rate as quoted will govern and the import of sub clause (c) is that in case of a discrepancy between figures and in words of any unit rate, the unit rate as quoted in words will govern. 54. Applying the aforesaid dictum and the clauses in the instant case we find that in various clauses form of offer and various other clauses are quoted above the emphasis is on the lump sum price bid for five years and then 1/5th of the upfront first instalment was required to be paid which could not have been less than 1/5th of the amount of total bid price. Here the condition was conversed. It was not on the basis of the year wise upfront instalment i.e. lump sum upfront instalment, the total lump sum amount was required to be worked out. As already held by us that 1/5th of the total lump sum for five years was to be the first instalment. Thus, the total lump sum has to prevail in the instant case the decision buttress the submission raised by the respondent No. 1. The decision, in our opinion, renders support to the view taken by us in the facts of the instant case. Their Lordships of the Apex Court in Patel Engineering (supra) have further laid down that mistake may be unilateral or mutual but it is always unintentional. If it is intentional it ceases to be a mistake. 55. The Hon'ble Supreme Court in Patel Engineering Co. (supra) has referred to a decision in Spina Asphalt Paving Excavating Contractors. Inc. v. Borough of Fairview reported in, 304 NJ Super 425, which is the decision of the superior Court of New Jersey. It was also a case of mistake when the bids were opened Spina discovered that its Secretary had erroneously indicated the unit price for one of the items as 400 dollars per square yard though it should have been 4 dollars per square yard as reflected in the total bid for that work. The Superior Court while agreeing with the law division observed that they did not hold that generally an error in the statement of a price could be treated as immaterial and it was only when as in that case the error was patent and the true intent of the bidder obvious that such an error might be disregarded. 29. Mr. Chidambaram relied upon a decision of the Superior Court of New Jersey in Spina Asphalt Paving Excavating Contractors. Inc. v. Borough of Fairview to justify the claim for rectification of mistakes. In that case, the Borough of Fairview invited tenders. Spina and one Tomaro participated in the bid. The bid was on a unit price basis and the proposals were submitted on forms supplied by the Borough. The bid specifications provided, inter alia: In the event there is a discrepancy between the unit price and the extended total, the unit price shall prevail. The Borough reserved the right to waive any informality if deemed in the best interests of the owner. In the evening when the bids were opened, Spina discovered that its secretary had erroneously indicated the unit price for one of the items as 400 dollars per square yard though it should have been 4 dollars per square yard as reflected in the total bid for that work. Spina faxed the Borough indicating that the intended unit price was 4 dollars per square yard. On the basis of 400 dollars per square yard Spina's bid was calculated which obviously worked out far higher than the intended bid amount. Taking note of that amount the Borough awarded the contract to Tomaro. Spina instituted action claiming that the borough arbitrarily failed to recognise that its bid was lower than that of Tomaro, The Law Division held that the error in the bid was non -material and subject to waiver. The Superior Court while agreeing with the Law Division observed that they did not hold that generally an error in the statement of a price could be treated as immaterial and it was only when as in that case the error was patent and the true intent of the bidder obvious that such an error might be disregarded. The Superior Court held that when as in that case the failure to waive the deviation would thwart the aims of the public bidding laws, the municipality was obliged to grant the waiver. 56. The Apex Court has observed that in Spina error was apparent $ 400 for $ 4 was non -material and waivable by the Corporation. However, the dictum was not applied in the Patel Engineering case as the facts were different in view of the categorical terms provided in clause 29 of the agreement in the Patel Engineering Case Unit was to be basis not the total. If we apply Spina case which has been considered by the Apex Court, we are of the opinion that facts are more or less similar in the instant case and it is a case of an apparent error, nonmaterial and waivable by the Corporation as observed by the Apex Court. In any case the opportunity ought to have been given to correct such an error by interplay of clause of Clauses 23 and 26 of the Volume -I, section 2 of the tender document what are principle making to each other to certain extent. 57. Reliance has also been placed on Glodyne Technoserve Limited v. State of Madhya Pradesh & Ors., reported in : (2011)5 SCC 103, It was a case of not filing of ISO Certificate. It was required to be annexed mandatorily as per changed terms and conditions subject to which tenders were invited. It was not filed along with tender, certificate was filed relating to the previous year. It was held that as document has not been filed as per condition of the NIT, the opportunity could not have been given later on to file the live certificate and the power which was exercised by the authority in view of the amendment made in the condition the decision was not perverse or arbitrary in any manner whatsoever. 58. In the instant case we find that it is a case where total lump sum price bid for five years was correctly mentioned in words and in figures and even first instalment was to be 1/5th of the lump sum figure for five years was correctly mentioned and only in words, there was a calculation mistake committed. It was clearly a case where Clause 23 was attracted, instalment figure could not be akin to the mandatory condition of 5 year bid price which stood applied within words and figures both, Rs. 243 crores was correctly mentioned. There was no mistake in the total lump sum bid for five years. The year wise figure could not have differed in the instant case. It was simplicitor case of mistake within writing amount in words. Total bid price was required to be followed as per material terms and conditions of the tender in our opinion, thus, the decision of Glodyne Technoseve Ltd. (supra) does not espouse cause of the appellant. Learned counsel has relied upon paragraphs 33, 34 and 37 of the aforesaid judgment, which read thus: 33. Referring to the disqualification clause contained in Para 4.11.6 in the request for proposal, the learned Attorney General pointed out that the proposal of the bidder was liable to be disqualified if, inter alia, the bid received from him was in complete form or not accompanied by the bid security amount or by all requisite documents. He also referred to Para 5.2 under section 5 which deals with proposal evaluation and lays special emphasis on the provisions under technical evaluation which set out that the said bid would be rejected if it did not meet the prequalification criteria. The learned Attorney General submitted that there was no provision at the time of technical evaluation for relaxation of the prequalification criteria. 34. In support of his aforesaid submission, the learned Attorney General firstly referred to the decision of a three -Judge Bench of this Court in Siemens Public Communication Network (P) Ltd. v. Union of India, wherein while considering the decision -making process of the Government or its instrumentality in awarding contracts, it was held that such process should exclude the remotest possibility of discrimination, arbitrariness and favouritism and the same should be transparent, fair, bona fide and in public interest. It was also held that it is not possible to rewrite entries, in bid documents and read into the bid documents terms that did not exist therein. 37. This Court in Sorath Builders observed that the lowest tenderer could not make any grievance as the lapse was due to his own fault. This Court notice that of the three bidders who had responded to the tender notice, one stood disqualified at the threshold and the lowest tenderer stood disqualified for having filed the requisite documents three days late. In effect, the appellant in the said case ultimately turned out to be the sole bidder and his bid was accepted, being the lowest among all the eligible bids. 59. Reliance has also been placed by Shri Mukherjee, learned Senior Counsel on (Asia Foundation & Construction Ltd. v. Trafalgar House Construction (I) Ltd. & Ors.) : (1997) 1 SCC 738 in which it has been laid down by the Hon'ble Supreme Court that unless it is mala fide no interference for rebidding is called for. Correction was sought for which was held to be permissible by the High Court. The Apex Court relied on Tata Cellular v. Union of India, reported in : (1994) 6 SCC 651 and upheld the decision of the Bank and did not allow the correction. The Apex Court considering the Tata Cellular (supra) laid down thus: The Asian Development Bank came into existence under an Act called the Asian Development Act, 1996, in pursuance of an international agreement to which India was a signatory. This new financial institution was established for accelerating the economic development of Asia and the Far East. Under the Act the Bank and its officers have been granted certain immunities, exemption and privileges. It is well known that it is difficult for the country to go ahead with such high cost projects unless the financial institutions like the World Bank or the Asian Development Bank grant loan or subsidy, as the case may be. When such financial institutions grant such huge loans they always insist that any project for which loan has been sanctioned must be carried out in accordance with the specification and within the scheduled time and the procedure for granting the award must be duly adhered to. In the aforesaid premises on getting the evaluation bids of the appellant and Respondent 1 together with the consultant's opinion after the so -called corrections made the conclusion of the Bank to the effect 'the lowest evaluated substantially responsive bidder is consequently AFCONS' cannot be said to be either arbitrary or capricious or illegal requiring Court's interference in the matter of an award of contract. There was some dispute between the Bank on one hand and the consultant who was called upon to evaluate on the other on the question whether there is any power of making any correction to the bid documents after a specified period. The High Court in construing certain clauses of the bid documents has come to the conclusion that such a correction was permissible and, therefore, the Bank could not have insisted upon granting the contract in favour of the appellant. We are of the considered opinion that it was not within the permissible limits of interference far a Court of law, particularly when there has been no allegation of malice or ulterior motive and particularly when the Court has not found any mala fides or favouritism in the grant of contract in favour of the appellant. In Tata Cellular v. Union of India this Court has held that: The duty of the Court is to confine itself to the question of legality. Its concern should be: 1. Whether a decision -making authority exceeded its powers, 2. Committed an error of law, Committed a breach of the rules of natural justice,
(3.) REACHED a decision which no reasonable tribunal would have reached or,;