1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION LOD.NO.925 OF 2010 Ashwin S. Shah .. Petitioner Versus Municipal Corporation of Greater Mumbai and Ors. .. Respondents Mr.Aspi Chinoy, Senior Advocate with Rohan Cama with Mahesh Londhe i/b. Sanjay Udeshi & Co. for petitioner Ms.V.S.Gharpure for respondent No.1. Mr.R.A.Thorat with P.J.Thorat for respondent No.5 Mr.S.B.Narwade i/b. M.P.Vashi & Co. for respondent No.6 CORAM : J.N.PATEL, Actg.C.J. & S.C.DHARMADHIKARI, J. DATE : 30th April 2010. P.C.: 1] Mentioned not on board. In the light of the averments in the petition, urgency made out. With the consent of parties, we have taken up the petition itself for hearing and are disposing the same off by this short order. 2] This petition under Article 226 of the Constitution of India prays 2 for writ of certiorari calling for the records and proceedings of a tender for bi-annual contract for improvement of roads in Mumbai city, Western and Eastern suburbs for a period of 24 months, including monsoon and after examining the validity and legality thereof to quash and set aside the recommendation and/or approval of respondent Nos. 1 to 4 to award the work of respective Division (City) to respondent No.5. By further seeking issuance of writ of mandamus it is prayed that the decision to award contract in favour of respondent No.5 be set aside and the contract be awarded to the petitioner. 3] It is common ground that respondent Nos. 1 to 4 invited the subject tender on 16th October 2009. The 5th respondent was also one of the tenderers. 4] It is stated that the schedule is set out in para 11 of the petition and accordingly, the petitioner submitted his tender on 23rd March 2010. The averment in the petition is that the petitioner’s tender fulfills all the requirements which are stipulated in the tender conditions. After the packet (C) and the tender was opened, results were declared on 9th April 2010. The present petition concerns only the City division of the tender 3 work. The parties whose tenders were found to be in order are mentioned in para 13 of the petition and, thereafter, it is averred that the results were declared but the petitioner was shocked to note that the tender of respondent No.5 was considered as valid. 5] The only submission of Mr.Chinoy, learned Senior Counsel appearing for petitioner is that respondent Nos. 1 to 4 ought to have rejected the tender of respondent No.5 as the tender condition No.3.5.2 is clear. Inviting our attention to that tender condition, Mr.Chinoy submits that the joint venture is nothing but a partner and reliance is placed upon a decision of the Supreme Court in the case of Faqir Chand Gulati Vs. Uppal Agencies Pvt.Ltd. And Anr. reported in 2008 (10) SCC 345. 6] On the other hand, the Corporation has filed a short affidavit of their Deputy Chief Engineer who has pointed out that the tender of respondent No.5 does not fall foul of the terms relied upon by the petitioner. In para 6(a) of the affidavit in reply, it is pointed out that the Joint Venture partnership of M/s.Chirag Infra Projects Pvt.Ltd. (Chirag) and M/s.Naresh Traders (Naresh) is not for the present tender and both of them have submitted their tenders separately and not as a joint venture. 4 However, it was decided to endorse the work to the lowest bidder. Once these two parties are not having joint venture for the present contract, they do not get disqualified and in any event, the words joint venture are deleted as per the the corrigendum dated 30th October 2009. 7] With the assistance of the learned Counsel for parties, we have perused the tender conditions. It is well settled that in matters of tenders the court will not ordinarily set aside the term or condition unless it is found to be palpably arbitrary, unreasonable and violative of mandate of Article 14 of the Constitution of India. Having perused the tender conditions, we are of the opinion that the interpretation placed by the Municipal Corporation on the said terms is not arbitrary or unfair and unreasonable. There are two distinct contingencies inasmuch as partnership is contemplated in clause 3.5.2(a). The disqualification is if it is found that forms which are contemplated in clause 3.5(a) are tendered separately but under different names, then, their tender shall stand rejected. That is because there is a prohibition that common proprietor/ partners connected with one another financially or in the capacity outlined in sub-clause, then, they shall not tender separately under different names for the said contract. In the instant case, we are not 5 dealing with such a situation as the affidavit explains that M/s.Chirag is a private limited company and M/s.Naresh is a partnership firm, who are not having joint venture for the present contract. In such circumstances, we are of the opinion that the action of the respondents in awarding contract to respondent No.5 who is admittedly the lowest bidder is neither unreasonable, unfair or arbitrary so as to call for interference under Article 226 of the Constitution of India. The petition is devoid of any merits and is, therefore, dismissed. ( Actg. CHIEF JUSTICE ) (S.C.DHARMADHIKARI, J)