Writ petition No. 6236 of 2010 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.6236 of 2010 Datta Digambar Sahakari Vahatuk Kamgari Sanstha Petitioner Versus The State of Maharashtra and others. Respondents Mr. Shailesh P. Brahme, Advocate for the petitioner Mr. S.K. Tambe, AGP for the respondents. CORAM : B.R. GAVAI & R.M. BORDE,JJ. DATE : 1ST DECEMBER, 2010. ORAL ORDER [ PER B.R. GAVAI, J] : 1] By way of present petition, the petitioner seeks a direction to the respondent Nos. 1 to 3 for issuing work orders for 11 routes described in para.16 of the writ petition. Initially, the respondent No.2 had invited bids for award of work of distribution of milk on different routs for the period 2010 to 2013. The bids which were received were opened on 18th March, 2010. The petitioner was the lowest bidder for 26 routs, however, the respondent authorities finding that the rates offered by the petitioner were on a higher side, decided to publish another advertisement inviting fresh bids. Vide advertisement dated 13th May, 2010, fresh tender was issued for 26 routes. Writ petition No. 6236 of 2010 2 2] The bids received pursuant to the said advertisement were opened on 29th May, 2010. The work of Gangakhed-Parbhani and Ahmedpur-Udgir routes, was allotted to the respondent No.4 herein, as his rates were lowest for the said routs. However, since for the remaining 24 routs, no bids were received, time was extended by issuing a notice dated 10th June, 2010. The bids received In response to the said notice, were opened on 23rd June, 2010. Out of the bids opened on 23rd June, 2010, the petitioner being the lowest bidder was awarded contract for 5 routes. The petitioner was, therefore, aggrieved for not awarding contract for the remaining routs, out of which, subsequently, the work regarding 8 routes were awarded to him. 3] Now, the grievance of the petitioner is only in respect of the 4 routs, namely, Gangakhed-Parbhani, Ahmedpur-Udgir, Aurangabad-Mumbai and Aurangabad Khopoli, which have been referred to as routes Nos. 1,2,3 and 4, respectively. The contract for routes Nos. 1 and 2 is awarded to the respondent No.4. In so far as the contract for routes Nos. 1 and 2 is concerned, the learned counsel for the petitioner submits that though the contract is awarded to respondent No.4 @ Rs.0.44 Per liter, the petitioner had offered the bid @ Rs.0.34 per liter and, therefore, the petitioner ought to have been given the contract. In so far as contract for routes Nos. 3 and 4 is concerned, the contention of the respondent State is that the petitioner had not supplied the vehicles and as such, the contract was awarded to the respondent No.5. In this respect, Writ petition No. 6236 of 2010 3 the learned counsel for the petitioner relying on clause 9(b) of the terms and conditions of the contract submits that the respondent authorities, instead of terminating the contract, ought to have made arrangement for engaging other/substitute vehicles, by charging the additional charges to the petitioners. 4] In so far as routes Nos. 1 and 2 is concerned, it is not in dispute that the petitioner has not responded to the subsequent tender notice, which was issued on 13th May, 2010. The petitioner, who is not the participant in the fresh tender process, cannot be heard to say that since his rates were lowest in the earlier tender process, he should have been awarded the contract in pursuance to the fresh tender notice. In so far as the routes Nos. 3 and 4 are concerned, it has been categorically stated in the affidavit in reply that the petitioner has failed to supply the vehicles for the said routes. This fact is undisputed. The petitioner has not filed any affidavit in rejoinder to counter this position. The only reliance placed is on clause No.9(b) of the terms and conditions of the contract. It is to be noted that clause 9(b) vests a discretion with the authority to get the work done through other agencies without terminating the contract, in case, the contractor to whom contract is awarded does not supply the vehicles. It is to be noted that the said power is discretionary. If a contractor fails to abide by the contract, power is always with the authority to terminate the contract for breach thereof. Unless it is shown that the said power is exercised in an arbitrary manner, it will not be permissible for this court to interfere by exercising the extraordinary jurisdiction under Article 226 of the Writ petition No. 6236 of 2010 4 Constitution of India. Neither any arbitrariness nor any malafides have been attributed to any of the authorities in the pleadings of the petition. We are, therefore, not inclined to entertain the petition. Hence, the same is dismissed. [R.M. BORDE,J.] [B.R. GAVAI,J.] grt/wp