SCA/30537/2007 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 30537 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE M.S.SHAH AND HONOURABLE MR.JUSTICE RAVI R.TRIPATHI ========================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= PURSHOTTAMDAS JERAMDAS & COMPANY - Petitioner(s) Versus FOOD CORPORATION OF INDIA THRO' GENERAL MANAGER (GUJ) & 2 - Respondent(s) ========================================= Appearance : MR NAVIN PAHWA for M/S THAKKAR ASSOC. for Petitioner(s) : 1, MR MIHIR JOSHI, SR. ADVOCATE with MR SHAKEEL A QURESHI for Respondent(s) : 1 - 2. MR MIHIR THAKORE, SR. ADVOCATE with MR BM MANGUKIYA for Respondent(s) : 3, ================================================= CORAM : HONOURABLE MR.JUSTICE M.S.SHAH and HONOURABLE MR.JUSTICE RAVI R.TRIPATHI Date : 18/01/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE M.S.SHAH) SCA/30537/2007 2/5 JUDGMENT Heard Mr Navin Pahwa for the petitioner, Mr Mihir Joshi, Senior Advocate with Mr Qureshi for respondent Nos.1 and 2 and Mr Mihir Thakore, Senior Advocate with Mr BM Mangukiya for respondent No.3. 2. RULE. Mr Qureshi waives service of Rule for respondent Nos.1 and 2 and Mr BM Mangukiya waives service of Rule for respondent No.3. In the facts and circumstances of the case, we have taken up this petition for final disposal today. 3. Facts leading to filing of this petition briefly stated are as under :- By tender notice dated 20.06.2007 (Annexure-E), the Food Corporation of India invited sealed offers of composite rate from the parties possessing valid licence for stevedoring / cargo handling for appointment of contractor for stevedoring, clearing, handling and transport of foodgrains etc. for handling of 10.00 lakhs MT Wheat which may increase or decrease at Kandla Port for a period of one year. Both the petitioner as well as respondent No.3 submitted their bids in response to the above tender notice. However, on account of the litigation filed by another party whose bid was not considered to be valid, there was some delay on the part of the respondent authorities in taking the final decision. The offers which were made by the petitioner as well as by respondent SCA/30537/2007 3/5 JUDGMENT No.3 at around Rs.551/- did, however, come down to Rs.460/- at the hearing of the previous petition being Special Civil Application No.18190 of 2007. That petition came to be disposed of on 28.09.2007. It appears that Food Corporation of India, thereafter, initiated another round of negotiations with the eligible bidders i.e. the petitioner and respondent No.3 herein. During the course of those negotiations, respondent No.3 addressed letter dated 15.11.2007 (Page-139 of the compilation) to the General Manager, Food Corporation of India, Ahmedabad indicating that the rate of Rs.460/- per metric ton offered by them at the hearing of the petition was quite reasonable, but that offer was made on the assumption that the contract was going to be awarded to more than one party. However, if the contract is to be given to respondent No.3 alone on single basis, then, respondent No.3 can reduce the rate because respondent No.3 would get more volume of work. Respondent No.3 along with the said letter also sent a sealed envelop containing the rate offered by respondent No.3 making it clear that the rate would be valid for seven days. In view of the said offer made by respondent No.3, the Food Corporation of India called upon the petitioner also to submit its offer in the sealed envelope and sent reminder by telegram dated 21.11.2007 calling upon the petitioner to submit its offer by 21.11.2007 evening, failing which, the contract will be finalised with the lowest offer in view of urgency. Since the petitioner did not submit any offer in response to the said communication, the Food Corporation of India SCA/30537/2007 4/5 JUDGMENT proceeded with the matter and ultimately, awarded the contract to respondent No.3 on 05.12.2007. 4. The petitioner, thereupon, filed the present petition on 20.12.2007 making a grievance that the petitioner was not informed about the offer made by respondent No.3 on 15.11.2007, nor was the petitioner informed that respondent No.3 was permitted to make a conditional offer to the effect that the contract could be awarded to one single party. 5. In response to the notice, the Food Corporation of India and its Assistant General Manager (Contracts) as well as respondent No.3 have appeared through their learned advocates. Affidavits-in- reply are also filed on behalf of the respondents. It is, however, not necessary to go into the details of the contentions sought to be raised in the petition or the defence of the respondents on merits because the Court called upon the parties i.e. the petitioner as well as respondent No.3 to state their lowest offer in presence of each other. 6. Mr Navin Pahwa for the petitioner has stated that the petitioner's lowest offer was Rs.369/- per metric ton and that the petitioner was not prepared to go below the same. On the other hand, Mr Mihir Thakore, Senior Advocate with Mr Mangukiya for respondent No.3 have stated that respondent No.3 is offering the SCA/30537/2007 5/5 JUDGMENT rate of Rs.368/- per metric ton for the future quantity to be imported at Kandla Port i.e. this offer will not affect the amount, which respondent No.3 is entitled to receive under the contract dated 05.12.2007 for the quantities already imported between 05.12.2007 and 17.01.2008. 7. Mr Mihir Joshi, Senior Advocate with Mr Qureshi states, under instructions of General Manager, Food Corporation of India, Gujarat Region, Ahmedabad, that Food Corporation of India has no objection to accept the revised offer of respondent No.3 for the quantities of foodgrains to be handled at Kandla Port from today onwards in terms of the tender notice at Annexure-E to the petition. 8. In view of the above consensus, we partly allow this petition by directing respondent Nos.1 and 2 to modify the contract dated 05.12.2007 awarded by respondent Nos.1 and 2 earlier in favour of respondent No.3 and respondent Nos.1 and 2 shall now provide in the modified contract that the rate payable to respondent No.3 for the work which is the subject matter of the tender notice referred to hereinabove payable to respondent No.3 shall be Rs.368/- per metric ton for the quantities which will hereafter be imported at Kandla Port during the one year period which commenced from 05.12.2007. [M.S. SHAH, J.] [RAVI R. TRIPATHI, J.] mrpandya*