1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1935 OF 1990 Shri Prakash Janardan Bokil, Adult ) Indian Inhabitant, residing at Plot ) No.3, Sawarkar Society, Sahakar ) Nagar, Pune – 411 009. )... ... Petitioner. VERSUS 1)Maharashtra Housing and Area ) Development Authority, a ) Corporate body under the ) Maharashtra Housing and Area ) Development Act,1976, having ) its office at Griha Nirman Bhavan, ) Bandra,Bombay- 400 050. ) 2) The Chief Officer of the Pune ) Housing and Area Development ) Board, a unit of the Maharashtra ) Housing and Area Development ) Authority having office at Griha ) Nirman Bhavan, Agarkar Nagar, ) Pune – 411 001. )... ... Respondents. -: ALONG WITH :- CIVIL APPLICATION NO. 670 OF 2009 IN WRIT PETITION NO. 1935 OF 1990 Shri Prakash Janardan Bokil, Adult ) Aged 48 years, Indian Inhabitant, ) residing at Plot No.3, Sawarkar ) Society, Sahakar Nagar, Pune – ) 2 411 009. )... ... Applicant. (Orig.Petitioner) VERSUS 1)Maharashtra Housing and Area ) Development Authority, a ) Corporate body under the ) Maharashtra Housing and Area ) Development Act,1976, having ) its office at Griha Nirman Bhavan, ) Bandra,Bombay- 400 050. ) 2) The Chief Officer of the Pune ) Housing and Area Development ) Board, a unit of the Maharashtra ) Housing and Area Development ) Authority having office at Griha ) Nirman Bhavan, Agarkar Nagar, ) Pune – 411 001. )... ... Respondents. -: ALONG WITH :- WRIT PETITION NO. 1936 OF 1990 Sun Rise Systems Private Limited ) a Company registered under the ) Indian Companies Act and having its ) registered office at Office No.9 ) Laxminagar, Pune – 411 009. )... ... Applicants. (Orig.Petitioner) VERSUS 1)Maharashtra Housing and Area ) Development Authority, a ) Corporate body under the ) Maharashtra Housing and Area ) Development Act,1976, having ) its office at Griha Nirman Bhavan, ) Bandra,Bombay- 400 050. ) 3 2) The Chief Officer of the Pune ) Housing and Area Development ) Board, a unit of the Maharashtra ) Housing and Area Development ) Authority having office at Griha ) Nirman Bhavan, Agarkar Nagar, ) Pune- 411 001. )... ... Respondents. -: ALONG WITH := CIVIL APPLICATION NO. 671 OF 2009 IN WRIT PETITION NO. 1936 OF 1990 Sun Rise Systems Private Limited ) a Company registered under the ) Indian Companies Act and having its ) registered office at Office No.9 ) Laxminagar, pune – 411 009. )... ... Applicants. (Orig.Petitioner) VERSUS 1)Maharashtra Housing and Area ) Development Authority, a ) Corporate body under the ) Maharashtra Housing and Area ) Development Act,1976, having ) its office at Griha Nirman Bhavan, ) Bandra,Bombay- 400 050. ) 2) The Chief Officer of the Pune ) Housing and Area Development ) Board, a unit of the Maharashtra ) Housing and Area Development ) Authority having office at Griha ) Nirman Bhavan, Agarkar Nagar, ) Pune- 411 001. )... ... Respondents. 4 Mr. R. V. Govilkar for the Petitioners in both the Writ Petitions and for Applicants in both the Civil Applications. Mr. C. R. Sonawane, AGP for the Respondents. CORAM : BILAL NAZKI and V. K. TAHILRAMANI, JJ. RESERVED ON: 13TH APRIL, 2009. PRONOUNCED ON : 16 th APRIL, 2009. JUDGMENT (Per Bilal Nazki,J.) : Both these writ petitions raise the same question of law and are therefore being heard and disposed of by this common judgment. For the purpose of this judgment, the facts of Writ Petition No. 1936 of 1990 are taken. 2. Respondent No.1 is a corporate body working under the provisions of the Maharashtra Housing and Area development Act, 1976. Respondent No.2 is the unit of respondent No.1. The respondents published an advertisement No.26 in the newspapers at Pune for sale of 20 offices and 13 shops in Phase 2 of the Laxmi Nagar Commercial Complex and invited tenders on certain terms and conditions mentioned in the booklet. The petitioner, who is also a registered company, submitted its tender for an Office for a sum of Rs.3,00,000/- on 8th January, 1990. The tenders were 5 opened on the same day in the presence of the bidders. According to the petitioner, the petitioner was the only bidder as far as Office No. 18 was concerned. The respondents informed the bidders that the decision as regards the acceptance or rejection would be communicated later. The petitioner contends that inspite of repeated inquiry, there was no response till 2nd April, 1990 when the petitioner received a letter from respondent No.2 informing the petitioner that the price quoted by the petitioner was less than the off set price or Government rate and asked the petitioner to appear before respondent No.2 on 11th April, 1990. A meeting took place and respondent No.2 repeated that the petitioner's offer was less than the office price and the petitioner was asked to increase the price at least by Rs.3 lakhs and was asked to increase the offer by next day. The petitioner did not do so. But the petitioner wrote a letter on 12th April, 1990 requesting for allotment. The Petitioner did not receive any reply from the respondents but received a letter on 19th April, 1990 informing that its offer was rejected. This letter is challenged in this writ petition. 3. Counter affidavit has been filed and we have heard the learned Counsel appearing for the parties. It may be mentioned here that the writ petitions were earlier dismissed for non-prosecution vide order dated 15th April, 2004 and were restored on 23rd April, 2005. They were again 6 dismissed for non-prosecution on 29th January, 2009 and the Civil Application Nos. 670 of 2009 and 671 of 2009 are filed by the respective petitioners for restoration of the writ petitions are allowed. Both the writ petitions stand restored. 4. At the outset, it will be worthwhile to mention that it will be improper and unjust to direct the respondents to allot the property to the petitioner at the price quoted by the petitioner. This case is also a sad example not only on the petitioner but also on the judicial system itself as in the year 1990 when these petitions were filed the Court granted stay. On 4th May, 1990 this Court passed the following order : "Heard Shri Govilkar and Shri Prandare. Rule and interim relief in terms of prayer (c).” Prayer (c) of the writ petition reads thus: "(c) Pending the hearing and final disposal of the petition the respondents be restrained from dealing with, allotting to or inviting fresh offers, for said office No.18, Laxmi Nagar Commercial Complex, Pune to any one else.” So the net result is for 19 years the properties, which are owned by the respondents, who represents the State, have been rendered useless. It has neither benefited the petitioners nor the respondents and in any case the properties cannot be allotted to the petitioners on the rate quoted by him in the year 1990. The properties must have increased its prices manifold. 7 5. Learned Counsel for the petitioners, however, insists that since the action of the respondents was arbitrary, therefore, the order should be quashed and writ should be allowed and the petitioners should be held entitled to get the properties. He, however, concedes that the fair price may be fixed. We cannot agree to such a proposal because the law is well settled that the respondents could have at any stage rejected the offer particularly, in this case when only one person was contender. But the petitioner submits that its tender was rejected on the ground that he had quoted the price below the off set price although the advertisement did not prescribe any off set price. Even if it is agreed that no such condition was prescribed in the tender advertisement, but the petitioner was called for a meeting and he was told that he should bid at least Rs.5 lakhs, which the petitioner did not do. The petitioner had only made an offer which was not acceptable to the respondents and the respondents had made a counter offer which was not acceptable to the petitioner. The matter should have ended there. In the counter affidavit, it is stated that the petitioner was called. He was told that the price was less than the off set price. He was also told that he should give in writing that the off set price of Pune Housing and Area development Board is acceptable to him. Off set price, according to the respondents, was Rs.6,000/- per sq. meter. 8 6. Learned Counsel for the petitioners has referred two Judgments of the Supreme Court. The first judgment is in the case of Union of India & Ors. V/s Dinesh Engineering Corporation & Anr., reported in (2001) 8 SCC 491. Paragraph 15 of the said judgment, reads thus : “15. Coming to the second question involved in these appeals, namely, the rejection of the tender of the writ petitioner, it was argued on behalf of the appellants that the Railways under clause 16 of the Guidelines was entitled to reject any tener offer without assigning any reasons and it also has the power to accept or not to accept the lowest offer. We do not dispute this power provided the same is exercised within the realm of the object for which this clause is incorporated. This does not give an arbitrary power to the Railways to reject the bid offered by a party merely because it has that power. This is a power which can be exercised on the existence of certain conditions which in the opinion of the Railways are not in the interest of the Railways to accept the offer No such ground has been taken when the writ petitioner' s tender was rejected. Therefore, we agree with the High Court that it is not open to the Railways to rely upon this clause in the guidelines to reject any or every offer that may be made by the writ petitioner while responding to a tender that may be called for supply of spare parts by the Railways. Mr. Iyer, learned Senior Counsel appearing for EDC drew our attention to a judgment of this Curt in Sterling Computers Ltd. v. M & N Publications Ltd., which has held : "Under some special circumstances a discretion has to be conceded to the authorities who have to enter into contract giving them liberty to assess the overall situation for purpose of taking a decision as to whom the contract be awarded and at what terms. If the decisions have been taken in bona fide manner although not strictly following the norms laid down by the courts, such decisions are upheld on the principle laid down by Justice Holmes, that courts while judging the constitutional validity of executive decisions must grant certain measure of freedom of `play in the joints' to the executive.” 9 We have no quarrel with the principles laid down by the Supreme Court. In the present case, we find that the price was not acceptable to respondent No.2 and the petitioner was the only bidder. Therefore, nothing could have stopped the respondents from rejecting the tender of the petitioner. The second judgment is in the case of M/s. Star Enterprises and Ors. V/s City and Industrial Development Corporation of Maharashtra Ltd. & Ors., reported in (1990) 3 SCC 280. This was a case in which the respondents had invited tenders. The petitioner therein was the highest tenderer with respect to allotment of plots. The tender was rejected. The petitioner came to the High Court. The High Court dismissed the petition holding that there was no arbitrariness in the action of the respondents trying to get proper price for its plot. This decision of the High Court was not disturbed by the Supreme Court. Certain observations were made which cannot be read in isolation. In paragraph 8 of the judgment, the Supreme Court said: "8. the State is certainly entitled to look for the best deal in regard to its properties. This has been accepted by several decisions of this Court with reference to State action under the excise laws. There is no allegation of mala fides in the conduct of respondent 1 in refusing to accept the highest offer. We must, therefore, proceed on the footing that respondent 1 acted bona fide and in refusing to accept the highest offers of the appellants in regard to specific plots has been actuated by the consideration of looking for better offers for the specific plot in the economic interests of respondent 1.” 10 7. For these reasons, we do not find any merits in the writ petitions, which are hereby dismissed. Rule discharged. Interim order stands vacated. 8. The respondents, if they chose to sell the property in question, they shall do so only by open auction or by calling fresh tenders. 9. In view of the dismissal of the writ petitions themselves, the civil applications do not survive and are dismissed as such. 10. Costs of Rs.10,000/- to be paid by each of the petitioner to the respondents within six weeks from today. Sd/- (BILAL NAZKI, J.) Sd/- (SMT. V. K. TAHILRAMANI, J.)