IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3194 OF 2011 "Akeel Khkan Bashir Khan Vs. The Divisional Railway Manager, Bhusawal and others." Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 1 Akeel Khan Bashir Khan Age 38 years, Occ. Business, R/o. Laxmi Naarayan Nagar, Bhusawal, Tq. Bhusawal, Dist. Jalgaon. .. PETITIONER. VERSUS 1] The Divisional Railway Manager, Central Railway, Bhusawal Division, Bhusawal, Dist. Jalgaon. 2] Senior Divisional Commercial Manager, Commercial Division, Central Railway, Bhusawal, Dist. Jalgaon. 3]Senior Divisional Finance Manager, Central Railway, Bhusawal Division, Bhusawal, Dist. Jalgaon. 4] Dhiraj Gendhalal Ghenghat, Age 28 years, Occ. Business, R/o. Walmik Nagar, Jamner Road, Bhusawal, Dist. Jalgaon. .. RESPONDENTS. Mr. S.P. Brahme, Advocate for petitioner. Mr. P.G. Godhamgaonkar, Advocate for respondents. CORAM :- B.R. GAVAI & M.T. JOSHI, JJ. DATE :- 30TH SEPTEMBER, 2011. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3194 OF 2011 "Akeel Khkan Bashir Khan Vs. The Divisional Railway Manager, Bhusawal and others." Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 2 ORAL JUDGMENT [ PER B.R. GAVAI,J.] :- 1] Rule. Rule made returnable forthwith. Heard by consent finally. 2] By way of present petition, the petitioner challenges the rejection of his tender on the ground that the earnest money deposited by the petitioner is in the form of Fixed Deposit receipt and was not in his own name but was in the name of his firm, i.e. Modern Shockup Repairing and Sales. 3] Respondent Nos. 1 to 3 had invited tenders for giving rights of two wheeler parking area at Bhusawal North Railway Station for a period of 3 years between 1st May, 2011 to 30th April, 2014. One of the conditions for submitting the tender was for earnest money of Rs.63,000 in the form of FDR or Demand Draft to be submitted alongwith the tender form. 3] The petitioner as well respondent No.4 submitted their tender. Since the respondent Nos. 1 to 3 allotted the tender in favour of respondent No.4, the petitioner has approached this court being aggrieved by the allotment of tender in favour of respondent No.4. It is the contention of the petitioner that respondent authorities had not given any reason as to why his IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3194 OF 2011 "Akeel Khkan Bashir Khan Vs. The Divisional Railway Manager, Bhusawal and others." Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 3 tender was rejected. It is the specific contention of the petitioner that respondent No.4 had quoted a bid amounting to Rs. 6,68,700/-, whereas, the petitioner given a bid for Rs.7.62,000/-. 4] In the first affidavit in reply, the respondent authorities have come up with a case that the Tender Committee on 17th February, 2011 found that the petitioner was not technically qualified since the earnest money deposited in the form of Fixed Deposit Receipt was from the account of Modern Shock up Repairs and Sales, and, hence, not in his own name. It is, therefore, submitted that it was only the respondent No.4, who was found to be qualified. 5] It is to be noted that the petitioner has specifically stated in the petition that on 18.1.2011, though Envelope A of the bidders were opened, Envelope B of the bidders were not opened and that the same have been subsequently opened behind the back of the parties. 6] It can thus clearly be seen that in the first affidavit in reply filed by Dr. Sumant Vasantrao Deulkar, Senior Divisional Commercial Manager, Central Railways, the only stand regarding rejection of the petitioner's bid is, not submitting the F.D.R. in his own name but in the name of the firm M/s. Modern Shockup Repairs and Sales. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3194 OF 2011 "Akeel Khkan Bashir Khan Vs. The Divisional Railway Manager, Bhusawal and others." Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 4 7] The petitioner, in his affidavit in rejoinder, has submitted that the F.D.R. which was given alongwith the tender was encashable and no prejudice was caused to the respondent authorities by submitting the same in the form of FDR in the name of his own firm. Now, for the first time, in an additional affidavit filed on behalf of Shri K.M. Saxena, Senior Divisional Commercial Manager, Central Railway, Bhusawal, it is stated that out of the 3 packets, one was in the name of the petitioner and the second was in the name of respondent No.4. It is stated that there was also a third envelop, which did not contain tender document, but few irrelevant papers including Xerox Copy of FDR No. 020452 of Central Bank in the name of Sr. DFM A/c Modern Shock up repairing and sales and letter head of said firm was there. . It is stated that the commercial bids were opened on 18th February 2011. Only such of the tenderers whose technical bid was found in order and according to the terms and conditions were invited and since respondent No.4 was the only qualified bidder, he was called on 28/2/2011. It is further stated that since petitioner did not qualify in technical bid, he was not noticed about 28.2.2011. 8] The respondent authorities have relied upon the so IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3194 OF 2011 "Akeel Khkan Bashir Khan Vs. The Divisional Railway Manager, Bhusawal and others." Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 5 called communication addressed by the petitioner to the respondent authorities. The petitioner has filed an additional affidavit denying what has been contended by the respondent authorities. 9] It can thus be seen that the respondent authorities have changed their stand, which was originally reflected in the affidavit dated 25.4.2011 sworn by Dr. Sumant Vasant Deulkar, in the affidavit filed by Mr. Saxena, dated 26th September, 2011. Though, initially it is stated that the tender of the petitioner was not accepted because of earnest money deposited was not in his own name, but in the name of his firm, now, an improvement is sought to be made that on account of the 3rd tender, which was allegedly at the instance of the petitioner, he was not found to be qualified. The authorities who are working under the State cannot be expected to take such a contrary and self-opposing stands. The conduct of the authorities is required to be fair, reasonable and transparent. It is to be noted that there is a difference of almost an amount of Rs.1 Lakh between the offer made by the petitioner and the offer made by respondent No.4. 10] Learned counsel for the petitioner, on instructions of the petitioner states that, in the event, fresh bids are invited, the petitioner is willing to give a minimum offer of Rs. 8 Lakhs for the IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3194 OF 2011 "Akeel Khkan Bashir Khan Vs. The Divisional Railway Manager, Bhusawal and others." Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 6 first year, with corresponding increase for the 2nd and 3rd year. The learned counsel undertakes to fie an undertaking of the petitioner within 2 weeks from today. 11] It is thus clear that the award of tender to respondent No.4 by the authorities was not in public interest. It is to be noted that the ground on which the petitioner's technical bid has been rejected is also not sustainable in law. The Apex Court, in the matter of “ Potdar Steel Corporation Vs. M/s. Ganesh Engineering Works and others” reported in AIR 1991 SC 1579, has held that it is not necessary that every term in the tender notice must be literally complied. It has been held that a minor technical irregularity of little or no significance can be waived and compliance of every term and condition should not be insisted upon. 12] In the present case, the purpose of depositing the FDR or DD was to ensure that the person who bids has sufficient amount to do the work, if contract is awarded to him. The petitioner had undisputedly submitted the FDR though not in his own name, but in the name of his firm, namely, Modern Shock up Repairing and Sales. As such, no prejudice was caused to the respondent authorities. In case the petitioner had breached any of the terms and conditions, the respondent authorities were always secured, inasmuch as, they could have encashed the said FDR. In IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3194 OF 2011 "Akeel Khkan Bashir Khan Vs. The Divisional Railway Manager, Bhusawal and others." Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 7 that view of the matter, we find that the rejection of petitioner's bid on the forehead ground, is unsustainable. 14] We, therefore, find that the decision making process of the respondent authorities has not been fair, reasonable or rational and as such, calls for interference at the hands of this court in the extraordinary jurisdiction under Article 226 of the Constitution of India. 15] The action of the respondent in awarding contract in favour of respondent No.4 is quashed and set aside. However, in the facts and circumstances of the present case, since almost a period of six months has lapsed from the date on which contract is awarded in favour of the respondent No4, we permit the authorities to continue the said contract in his favour till 30th April, 2012. 16] The authorities shall initiate the process for allotting tender for the period commencing from 1st May, 2012 for a further period of 3 years, within a period of one month from today and complete the same, on or prior to 1st March, 2012. Needless to state that the respondents shall ensure complete transparency in the matter of award of contract. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3194 OF 2011 "Akeel Khkan Bashir Khan Vs. The Divisional Railway Manager, Bhusawal and others." Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 8 Rule made absolute in aforesaid terms with costs, which are quantified at Rs.10,000/- to be paid cumulatively by the respondent Nos. 1 to 3, to the petitioner. [M.T. JOSHI,J.] [B.R. GAVAI, J.] grt/-