1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL JURISDICTION WRIT PETITION NO.9466 OF 2009 Maharashtra State Co-op. Consumer’s Federation Ltd., Mumbai Having its office at 87-A, Raj Chambers, 5th floor, Devji Ratanshi Marg, Dana Bunder, Mumbai 400 009 ...Petitioners. Vs. 1 Director of Education (Primary) Dr.Anne Basent Road, Central Building, Maharashtra State, Pune 2 Principal Secretary, Primary Education Department, Maharashtra State, Mantralaya, Mumbai 3 The Maharashtra State Co-op. Marketing Federation Ltd. Having its office at Kanmor House, Narshri Natha Street, Bhat Bazaar Masjid Bunder (W), Mumbai 400 009 4 The State of Maharashtra Through Govt. Pleader, High Court, Appellate Side, Mumbai ...Respondents. Mr.C.J.Sawant, Sr.Adv. with Mr. R.S.Ghadge with Mr.A.S.Desai , advs. For the Petitioners. Mr.A.V.Anturkar, Spl. counsel with Mr.S.R.Nargolkar, AGP For the Respondent Nos.1, 2 and 4. Mr.P.P.Chavan with Mr.Mani and Mr. M.Katauniar i/by Navdeep Vora & Associates, advs. for the respondent no.3. CORAM : F.I.REBELLO & J.H. BHATIA, JJ. DATED : 17th December , 2009 P.C. 2 1 Petitioner has approached this Court to challenge the award of tender in favour of the respondent no.3. Challenge is three fold. In the first instance, it is submitted that considering the judgment of the Supreme Court in Oil & Natural Gas Corporation Ltd. v. City & Industrial Development Corporation, Maharashtra Ltd. and Ors. (2007) 7 Supreme Court Cases 39, petitioner and the respondent no.3 both institutions of the State should be directed to approach an authority as set out in the said judgment. In our opinion, the petitioner could have exercised that option at the threshold, instead of that petitioner approached this Court got interim relief and now seeks above referred direction from this Court We must remember the fact that we are concerned with the scheme for supplying food-grains to primary school children. After the entire process has come to halt and the scheme stopped, in our opinion, we are not inclined to direct the parties at this stage to move under the principles of ONGC. Apart from that there are issues pertaining to bids issued by a third party. 2 The learned counsel then submits that in so far as the process of opening and doing the evaluation, if the averments made by the petitioner is seen, vis-a-vis averments made by the respondent nos.1 3 and 2 and the respondent no.3 on the other hand, there would be contradiction in-as-much as plea by the respondent nos.1 and 2 that the evaluation was done on the same day is not supported by the respondent no.3. In our opinion stress need not be lay on that aspect for, whether evaluation was done or not done on the same day. Firstly, it may result in giving rise to disputed questions of the fact which this Court would not decide. Secondly, we see no reason as to why the respondent nos.1 and 2, in any case considering two other public bodies having bid should go out of their way. In our opinion, therefore, that contention is also devoid of merits. 3 The learned counsel for the petitioner then contended that though the respondent no.3 has been held to be the lowest bidder yet the said respondent no.3 was called for negotiations by the respondent nos.1 and 2. That exercise should also have been done with the petitioner. Reliance is placed on the judgment of the Supreme Court in Food Corporation of India Vs. Kamdhenu Cattle Feed Industries 1993 SCC 1-71. On a perusal of facts, in the said case, it will be apparent in that case, persons, who invited tenders were not satisfied with the adequacies of the prices and considering that invited all tenderers for negotiations. The highest tenderer challenged that 4 exercise on the ground that others should not have been invited. The Supreme Court repelled that contending that the appellant then had invited all the persons, who had tenders. The Supreme Court observed that this would not be violative of Article 14 of the Constitution of India. 4 In the instant case, the bid of respondent no.3 was the lowest. Respondent Nos.1 and 2 could have accepted the said tender but instead of doing so, they further negotiated with the respondent no.3, who was the lowest bidder. If such an exercise is done with the lowest tenderer, in our opinion, we can not find any fault with the action of the respondent no.1. Said action cannot be said to be arbitrary and at any rate violative of article 14 of the Constitution of India. 5 Last contention, which is urged on behalf of the petitioner was the working out of the pricing mechanism. The learned counsel for the petitioner sought to contend that the respondent nos.1 and 2 had worked out prices of items 9 to 13 on the basis of 38 weeks which they could not have done but ought to have done it on the basis of 18 weeks. On behalf of the respondent nos.1 and 2, the learned counsel has drawn our attention that the pulses to be supplied therefore are not in alternative but any. In these circumstances, evaluation was done of the petitioner’s bid as also of the respondent no.3 bid on an uniform basis. 5 The learned counsel has placed reliance on the judgment of the Supreme Court in G.J. Fernandez vs. State of Karnataka and Others (1990) 2 Supreme Court Cases 488. The learned counsel specifically pointed out that the when the instrumentality of State consistently and bona-fide interprets the standards so prescribed in a particular manner and act accordingly, Courts would not interfere and substitute an interpretation which it considers to be correct. There can be no quarrel with the said proposition as articulated by the learned Supreme Court. A reading of the tender documents would indicate that the interpretation by the respondent nos. 1 and 2 is a fair interpretation and evaluation has been done on that basis. Respondent nos.1 and 2 on basis of that interpretation arrived at figure that the respondent no.3 was the lowest bidder, considering the price. In our opinion, we can not find any fault with the said findings. 6 Considering the above, in our opinion, no interference is called for. Petition stands rejected. Interim order earlier granted stands vacated. The learned counsel for the petitioner seeks continuation of the 6 interim order. In our opinion, considering the nature of contract which is for supplying food to primary school children, prayer stands rejected. (J.H. BHATIA,J.) (F.I.REBELLO, J.)