1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1794 OF 2008 M/s.Ghai Constructions .. Petitioner Vs. Pune Cantonment Board, Pune & Ors. .. Respondents Mr.S.S.Kulkarni for the petitioner Mr.K.J.Presswala i/b M/s.Mulla and Mulla and Craigie Blunt and Caroe for respondent nos.1 and 2 Mr.R.F.Lambey with Mr.A.S.Pai for respondent no.3 Mr.U.P.Bobde i/b Ms.N.B.Shah for respondent no.4 Mr.P.M.Patil, A.G.P. for respondent no.5 CORAM : J.N.PATEL CORAM : J.N.PATEL CORAM : J.N.PATEL & & & A.A.SAYED, JJ A.A.SAYED, JJ A.A.SAYED, JJ. DATED : 31ST MARCH, 2008 DATED : 31ST MARCH, 2008 DATED : 31ST MARCH, 2008 P.C.: 1. Heard. 2. The petitioner has approached this court being aggrieved by the decision of the respondent nos.1 and 2 in not opening the second bid i.e. the 2 price bid of the petitioner in respect of the tenders invited for financial year 1st April 2008 to 31st March 2009 for collection of Vehicle Entry Tax. 3. It is the case of the petitioner that though his tender form has been accepted and the technical bid has been opened, the authorities have taken an arbitrary decision for which the petitioner attributes malafide on their part not to open the price bid and thereby disqualified the petitioner from participating in the tender process. 4. On the other hand, the respondents have come up with the case that they are justified in refusing to open the second bid i.e. the price bid of the petitioner on the ground that the petitioner was their contractor for the past financial year and the cantonment board has received several complaints against the petitioner of over charging persons contrary to the terms of the contract awarded to him and after conducting due enquiry in the matter and giving an opportunity to the 3 petitioner, they are satisfied that the petitioner has disqualified himself from participating in further tender for the said purpose for the breach committed by them is of a very crucial term that they would not over charge the vehicles. 5. We have given our anxious consideration to the rival contentions made at the bar and various authorities placed before us. There is no quarrel over the principles laid down in the various decisions of the Supreme Court and our High Court in the matter relating to criteria which enables the court to exercise its powers of judicial review in contractual matters and its limitations. 6. The only thing which appeal to us was that respondent nos.1 and 2 having opened the technical bid of the petitioner should have proceeded to open the second bid i.e. the price bid and if the petitioner’s bid was the highest, their decision not to allot the contract to the petitioner could have been exercised at that stage after negotiating with the second highest bidder so as to benefit the cantonment fund. 4 7. The learned counsel appearing for the petitioner states that in the prayer clause (a) to the petition, he has sought directions to respondent nos.1 and 2 to open his price bid and when the court called upon him as to what is the price quoted by him, he has stated that it is Rs.7 crores 46 lakhs and that he is prepared to offer more than Rs.7.46 crores and is also prepared to participate in the open bid before the court along with the second highest bidder. 8. We find that in the interest of the cantonment fund it would have been just and fair to open the bid of the petitioner. Now the petitioner having disclosed his offer made in the bid as Rs.7.46 crores which is higher than the offer made by the second highest bidder which is Rs.6.70 crores, then they ought to have called the second highest bidder for negotiation in the interest of the cantonment fund without disclosing their decision that they have proposed to reject the offer made by the petitioner in the interest of the cantonment board. Probably, this is the only flaw 5 which appears to us in processing the tender. The cantonment board should have in their interest negotiated further with successful bidder for upward revision of his offer. 9. The learned counsel for the second highest bidder i.e. M/s.Himani Security and Alliance on seeking instruction from his client has stated that his clients are ready to revise their offer to Rs.7 crores than what they have mentioned in the bid i.e. they would increase their bid from Rs.6.70 crores to Rs.7 crores. 10. In our view, as the respondent cantonment board has taken a decision not to award the contract to the petitioner due to its past record which we find is quite just and fair and based on finding arrived at by the authorities of the board, we find no reason to interfere in the matter and accept the statement made by the learned counsel for the respondent no.4 i.e. M/s.Himani Security and Alliance that they would pay a sum of Rs.7 crores instead of Rs.6.70 crores to the cantonment board on being awarded the contract which we are 6 informed is already awarded. 11. The learned counsel for the cantonment board states that the cantonment board would accordingly modify the contract by changing the amount of bid from Rs.6.70 crores to Rs.7 crores. 12. Therefore, in the facts and circumstances, we are not inclined to entertain the petition as we have already observed that the decision of the board to disqualify the bid of the petitioner based on his past performance was just, fair and reasonable and does not smack of any malafides. 13. The learned counsel appearing for the petitioner submits that the petitioner may be allowed to operate the contract on the basis of his price bid for a period of 4 weeks so as to enable him to approach the Apex Court in the matter. In the normal course, we would have shown some indulgence and granted the prayer made by the learned counsel for the petitioner but as the contract comes to an end on 31st March, 2008, it will not be proper on the part of the court to 7 extend the contract in favour of the petitioner for a period of 4 weeks when we have upheld the decision of the board as just and proper. Needless to state that the petitioner has a remedy to claim damages, if any in the matter which remedy is kept open and, therefore, for the aforesaid reason, the prayer made by the learned counsel for the petitioner to allow the petitioner to continue to operate the contract for a period of 4 weeks stands rejected. 14. Petition stands dismissed accordingly. ( J.N. PATEL, J ) ( J.N. PATEL, J ) ( J.N. PATEL, J ) ( A.A. SAYED, J ) ( A.A. SAYED, J ) ( A.A. SAYED, J )