1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO. 54 OF 2009 ------------------------------------------- Kiran s/o Bhaskarrao Kulkarni .. PETITIONER. V E R S U S The State of Maharashtra and another .. RESPONDENTS. Shri M.M. Joshi, Advocate for the petitioner. Shri N.B. Khandare, Advocate for the respondents 1 and 2. CORAM : P. V. HARDAS AND R. K. DESHPANDE, JJ. DATE : 8 th JUNE, 2009. PER COURT :- 1. A public interest litigation has been filed by the present petitioner seeking to challenge the allotment of tender in favour of the 4 th respondent for the construction of Cancer Hospital and Research Center in premises of Amkhas Maidan, Aurangabad. Necessary tender notice in this behalf had been issued inviting the tenders. Pursuant thereto about 8 tenderers submitted their bid. Procedure which was contemplated in tender notice in respect of the submissions of the bid is of submission of two envelopes, one containing the technical bid while other containing 2 financial bid. After opening the envelopes, respondent issued work order to 4 th respondent. Affidavit-in-reply of 4 th respondent discloses that rate quoted by the fourth respondent was 3.33% below the estimated value of the work as per tender notice. Fourth respondent in his affidavit-in -reply has further stated that work order came to be issued to him on 18.12.2008 and the respondent has executed work amounting to Rs.2.5 crores. The aforesaid amount is stated to be the amount of work executed at the time of the filing of the writ petition i.e on 10.04.2009. 2. The challenges raised by the petitioner, who claims to be concerned with the loss which caused to the Government ex-checker, to the allotment of the said tender to respondent no.4 on the grounds that :- i. A certificate of no objection had been obtained by the respondent from the tenderers for opening envelope No.2 and therefore it was not open to disqualify the tenders in respect of any deficiency, have deficiency if any in the submission of the technical bids. ii. Rule came to be altered by the respondent i.e instead of opening the Envelope No.1 and there after Envelope No.2, the respondent opened the envelope i.e technical bid and the financial bid. Iii. The fourth respondent did not hold the requisite qualification and therefore in that sense was in-eligible to submit his tender. 3 iv. The financial bid of one M/s Ellora Construction ought to have accepted which was illegally rejected. v. The technical bid of the fourth respondent was deficient in as much as fourth respondent which not made disclosure in respect of machinery which was in his possession. 3. On the aforesaid grounds Mr. M. M. Joshi the learned counsel for the petitioner has urged before us quashing the allotment of the tender and for quashing work order issued to respondent No.4. A reliance is placed on the judgment in reported in AIR 2000 S.C. 2272. The respondent in their affidavit in reply have disclosed that the petitioner and the other tenders were eligible and both the envelopes were opened as to the papers were forwarded to respondent no.3, Chief Engineer. The Chief Engineer upon consideration of the financial aspects has awarded the tender to respondent No.4. The award of the tender to respondent No.4 was subject matter of challenge in writ petition No.1726 of 2009 which had been filed by the unsuccessful tenderer i.e M/s Ellora Construction. The relief which sought for in the said petition was issuance of writ of certiorari for quashing the work order dated 18.12.208 issued in favour of the present respondent No.4 herein. Another relief which was sought for in the said petition was of issuance of writ of mandamus for issuing work 4 order in favour of the petitioner therein i.e M/s Ellora Construction. It appears that the petition ultimately came to be withdrawn by M/s Ellora Construction and the Court dismissed the petition as withdrawn. This challenge to the allotment of the tender in favour of the fourth respondent was snuffed in the withdrawal of the said petition by M/s Ellora Construction. The aforesaid order came to be passed on 07.05.2009. Perusal of the Record and Proceedings of the said petition discloses that the notice of the petition was issued to the respondents and the Government on behalf of the respondents had also filed its affidavit-in- reply. 4. Scope of judicial review in a petition challenging the allotment of tender is extremely limited. Court is not directly concerned with the allotment but concerned with the process of arriving at the said decision. Though at paragraph No.9 of the petition, the learned counsel for the petitioner claims that allegations in respect of malafide have been started but merely because respondent no.3 had been promoted subsequent to the passing of the order of acceptance of the tender cannot be a ground to infer that tender had been malafidely awarded to respondent no.4 and thereby substantial loss has been caused tot he Government Ex-checker. There are no personal malafide against respondent no.3 in respect of 5 respondent no.3 either in rejecting bids of the other unsuccessful tenderes or in the acceptance of the bid of the present respondent no.4. Affidavit of the respondent clearly discloses that the respondent no.4 was found to be technically fulfilling the requirement as stated in the said tender notice and upon consideration of the contents of the first envelope respondent no.3 came to the conclusion that petitioner was eligible. This Court cannot sit as an appellate Court and scrutinize various technical aspects which have been done by respondent no.3. This Court does not have the necessary expertise. Apart from that the work order has been issued and work has commenced. This petition is therefore accordingly summarily dismissed with costs of Rs.25,000/-. We informed that amount of Rs.25,000/- has already been deposited in this Court by the petitioner. We therefore, award said amount to respondent No.4. Respondent No.4 is at liberty to withdraw the said costs. ( R. K. DESHPANDE ) ( P. V. HARDAS ) JUDGE JUDGE aaa/office/wp54.09.odt ...