1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. WRIT PETITION NO.2427 OF 2008 (M/S.G.S.MANKAR Vs STATE OF MAHARASHTRA & OTH.) _____________________________________________________________________________________________ Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's orders ______________________________________________________________________________________________ CORAM : D.D.SINHA & A.P.BHANGALE, JJ. DATED : JULY 10, 2008. 1. Heard Shri Anjan De, learned counsel for the petitioner, Mrs. Bharti Dangre, learned Additional Government Pleader for Respondents No.1 and 2 and Shri M.G.Bhangde, learned Senior Counsel for Respondent No.3. 2. The writ petition is directed against allotment of work order by the respondents/ State Government in favour of respondent No.3. The learned counsel for the petitioner states that the tender notice, in question, was floated by respondent No.2 dated 24.12.2007, whereby the tenders were invited from the registered contractor of eligible class of Public Works Department and Irrigation Department in sealed covers. It is 2 contended that the petitioner along with respondents No.3 and others submitted their bids on 10.03.2008. It is contended that, in the instant case, the State has violated essential eligibility criteria stipulated in Clauses 1.5.1, 1.5.2 and 1.5.3 and therefore, the work order dated 27.05.2008 issued by the State Government in favour of respondent No.3 cannot be sustained in law. 3. Shri De, learned counsel for the petitioner, has submitted that as per Clause 1.5.1 envelope No.1 was required to be opened first to verify whether the documents submitted therein are as per requirement of tender document. If the contents in envelope No.1 do not meet the requirement of tender document, a note is required to be prepared accordingly by the tender opening authority and envelope No.2 of such tenderer is not to be opened for further action and the same needs to be rejected. 4. Shri De, learned counsel further submits that in the instant case respondent No.3 does not fulfill eligibility criteria 3 prescribed in sub-clause (III) in Clause (B) of Clause 1.5.2 since respondent No.3 has not executed minimum quantity mentioned in clause (B) in single work in any one year in the last three years. It is contended that since respondent No.3 did not fulfill essential eligibility criteria the tender opening authority should not have opened envelope No.2 of respondent No.3. On the other hand, as per Clause 1.5.1 tender of respondent No.3 should have been rejected for non-fulfillment of the above referred eligibility criteria. 5. It is further contended that the stipulations mentioned in the above referred clauses of the tender documents are essential eligibility criteria and therefore, the Tender Opening Authority does not have power to either alter or modify or change those clauses to suit a particular tender since respondent No.1 alone is approving authority in this regard. It is, therefore, contended that in the backdrop of the above referred facts, the action of the respondents of issuing work order in favour of respondent No.3 is bad in law and, therefore, cannot be sustained in law. In order to substantiate 4 this contention, reliance is placed on the decision of this Court, in Reliance Energy Limited Vs. Maharashtra State Road Development Corpn. Ltd., reported at 2007(6) AIR Bom. R 743. 6. Mrs. Dangre, learned Additional Government Pleader, on the other hand supported the action of the State Government. It is contended that in the instant case it is no doubt true that as per relevant clause, the tenderer were required to execute minimum quantities mentioned in the said clause in single work in any one year. However, so far as the petitioner, respondent No.3 and one Prakash Constrovel Private Limited are concerned, after opening their envelope No.1 the condition mentioned in Clause (b) (III) of Condition No.1.5.2 was relaxed in favour of all these three tenders, including the petitioner. Instead of execution of minimum quantity in single work in a year the relaxation was given to all these tenderers was that execution of minimum quantity need not be in works executed in the whole year. It is submitted that this concession is given to the petitioner is evident from the fact that envelope No.2 of the petitioner was also opened. 5 7. Mrs. Dangre, Additional Government Pleader further contended that after opening of second envelopes of the petitioner, respondent No.3 and other tenderers, it is revealed that bid of the petitioner was 21% above the reserved price and the bid of the other tenders was 22% above the reserved price, whereas, bid of respondent No.3 was 15% above the reserved price. It is submitted that since the offer of respondent No.3 was lowest, it was accepted and work order came to be issued in favour of respondent No.3. 8. The learned Additional Government pleader further contended that as per Clause 1.2.1 of the tender document pre tender conference was held on 18.02.2008, in which the petitioner as well as other tenderers have participated. However, the petitioner did not raise any grievance before the authorities. Similarly, the document which is filed on record along with additional affidavit of respondent No.2 is signed by the petitioner, wherein it is specifically mentioned that the petitioner did not have any grievance about the tender process undertaken by the respondents. It is further contended that the action of respondent/ State is sustainable in law. 6 9. Shri Bhangde, learned Senior Counsel adopted the arguments advanced by Mrs. Dangre, learned Additional Government Pleader on behalf of the respondents / State. 10. Considered the rival contentions advanced by the respective learned counsel. 11. In the instant case, it is no doubt true that as per Clause (B) the tenderer was required to execute minimum quantity in single work in one year, in so far as brick masonary is concerned, i.e. 2850 cubic meter. It is also true that after opening of Envelope No.1, if the Tender Opening Authority finds that tender which does not fulfill eligibility criteria, envelope No.2 of such tenderer can not be opened and such tender needs to be rejected. However, in the instant case respondent/ State relaxed this eligibility criteria in favour of the qualified tenderers i.e. petitioner, respondent No.3 and one other tenderer. As stated by the learned Additional Government Pleader the relaxation which was given to tenderers was in execution of minimum quantity in a single work in a year as required under the relevant clause, all the work executed by them in a year were considered and if the work undertaken by them in a 7 year fulfills the criteria of minimum quantity mentioned in the relevant clause of tender document, such tenderers were held to be qualified. Therefore, action of relaxation of condition by the State Government is not only in respect of respondent No.3 alone but in respect of all the tenderers including the petitioner who were eligible and therefore, relaxation in such peculiar circumstances cannot be said to be unjust, arbitrary or resulted in miscarriage of justice. 12. In the instant case, it is not in dispute that in the pre-bid conference, which was held on 18.02.2008, the petitioner has not raised any grievance about the tender process, similarly the document which is annexed with the additional reply filed on behalf of respondent No.2 shows that the petitioner has signed the said document wherein it is mentioned that the petitioner does not have any grievance about the tender process undertaken by the respondent/ State. The petitioner, now, is not entitled to raise grievance against the respondent/ State in respect of the process of tender, more particularly on the backdrop of the above referred facts and 8 circumstances. It is not in dispute that the work order is already issued by the State in favour of respondent No.3 prior to filing of the petition. 13. So far as decision of the Apex Court in Reliance Energy Limited (cited supra), relevant portion of observations made by the Apex Court in paragraph 22, reads thus : “.... “Level playing field” is an important concept while construing Article 19(1)(g) of the Constitution. It is this doctrine which is invoked by REL/HDEC in the present case. When Article 19(1)(g) confers fundamental right to carry on business to a company, it is entitled to invoke the said doctrine of “level playing field”. We may clarify that this doctrine is, however, subject to public interest. In the world of globalization, competition is an important factor to be kept in mind. The doctrine of “level playing field” is an important doctrine which is embodied in Article 19(1)(g) of the Constitution. This is because the said doctrine provides space within which equally-placed competitors are allowed to bid so as to subserve the larger public interest. “Globalization”, in essence, is liberalization of trade. Today India has dismantled licenceraj. The economic reforms introduced after 1992 have brought in the concept of “globalization”. Decisions or acts which results in unequal and discriminatory treatment, would violate the doctrine of “level playing field” embodied in Article 19(1)(g).....” 9 14. It is difficult for us to understand as to how the above referred observations of the Apex court will further the case of the petitioner. On the other hand, it is evident that the decisions or acts which result in unequal and discriminatory treatment would violate the doctrine of “level playing field”. In the instant case, as we have already observed hereinabove the relaxation which was given by the State, was not only in respect of respondent No.3, so far as relevant condition is concerned, but the said relaxation was extended to the petitioner as well as other tenderers and, therefore, this is not the case, where the act of the Government has resulted in unequal or discriminatory treatment to the qualified tenderer i.e. petitioner, respondent No.3 and one another. 15. The learned counsel for the petitioner has also placed reliance on the decision of the Apex Court in Ramana Dayaram Shetty Vs. International Airport Authority of India, reported in (1979) 3 SCC 489. However, considering the facts and circumstances of the present case, we are of the opinion that the law laid down by the Apex Court in Ramana Shetty's 10 case also does not further the case of the petitioner. 16. Consequently the petition suffers from lack of merit, the same is dismissed. JUDGE JUDGE RR.