1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. WRIT PETITION NO.1480 OF 2009 Ganesh Hamal Mapadi Purvatha Karnari Co-operative Society Ltd., Bhusawal, District Jalgaon, through Chairman Mrutunjay Shankarlal Upadhay .. Petitioner Versus The State of Maharashtra and others .. Respondents Shri R.N.Dhorde, Advocate holding for Shri R.L.Kute, Advocate for petitioner Shri V.H.Dighe, AGP for respondents 1 to 3 Shri K.D.Bade Patil, Advocate for respondent No.4 Shri A.G.Talhar, Advocate for respondent No.5 - WITH - WRIT PETITION NO.860 OF 2008 Jay Walmiki Hamal Mapadi Kam Karnaryanchi Sahakari Sanstha Maryadit, Through its Chairman, Raju Uttam Bhagat .. Petitioner Versus The State of Maharashtra and others .. Respondents Shri S.P.Brahme, Advocate for petitioner Shri V.H.Dighe, AGP for respondents 1 to 3 Shri K.D.Bade Patil, Advocate for respondent No.4 - WITH - WRIT PETITION NO.6938 OF 2008 Santosh s/o Kashinath Wankhede .. Petitioner Versus The State of Maharashtra and others .. Respondents 2 Shri S.J.Salgare, Advocate holding for Smt.S.S.Jadhav, Advocate for petitioner Shri V.H.Dighe, AGP for respondents 1 to 3 and 5 Shri K.D.Bade Patil, Advocate for respondent No.4 CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 20th August 2009 PER COURT : 1. Since these petitions question the acceptance of the tenders of the respondent No.4/Contractor and the issuance of the work order to the concerned respondent, these three petitions can be decided by this common order. 2. We may refer to the facts as are pleaded in Writ Petition No.1480 of 2009, as the facts are identical in the other petitions. Writ Petition No. 1480 of 2009 has been filed by the petitioner praying therein for issuance of a writ of certiorari for quashing and setting aside the acceptance of tender of the respondent No.4 and also prays for issuance of a writ of mandamus directing respondents 1 to 3 to accept the offer given by the petitioner pursuant to the tender notice dated 12.9.2008. The petitioner in the alternative prays for issuance of a writ of mandamus directing respondents 1 to 3 to continue the work of loading and unloading of the food grains by the petitioner in view of Government Resolutions dated 29.4.2008 and 4.7.2008. The petitioner also prays for issuance of a writ 3 of certiorari for quashing and setting aside the allotment of tender in favour of respondent No.4 as well as the work order. 3. Undisputedly, a tender notice dated 12.9.2008 came to be published inviting tenders on behalf of the Contractors for transportation i.e. loading and unloading of food grains at the Government godowns. The petitioner in Writ Petition No.1480 of 2009 as well as the petitioners in the other two petitions and the successful tenderer and other tenderers submitted their tenders. It appears that as per the tender notice, the first envelope which is the technical bid was supposed to contain several documents relating to the technical aspects i.e. the eligibility of the tenderers etc., while the second envelope is in respect of rates quoted by each of the tenderer. As per the rules prescribed, the first envelope was to be opened and if the tenderer therein was found to be eligible, the second envelope was to be opened on subsequent day. The first envelope was to be opened on 29.9.2008. As the Collector was away on official tour, respondent No.3 the District Supply Officer opened the first envelope i.e. the technical bid on 29.9.2008. According to the petitioner, he had enquired from the office and was told as the Collector was not available, the technical bid would not be opened and relying on the said assurance the petitioner had left the premises. The aforesaid contention is obviously a disputed question, which really speaking cannot be answered by this Court in writ jurisdiction. Suffice it to say that the first envelope was opened on 29.9.2008 and the petitioner was shown to be 4 absent. According to the petitioner, by taking advantage of the absence of the petitioner, surreptitiously the successful tenderer was allowed to submit certain documents at the time of opening of first envelope. It is also alleged that successful tenderer was also permitted to carry out corrections in the technical bid and though the successful tenderer has quoted 300% above the base rate, he was permitted to correct it to 0%. It was urged before us that the act of authorities to permit the successful tenderer to carry out corrections resulted into deprivation of the contract to the petitioner. 4. Similar challenges have been made in the other two petitions. In Writ Petition No.860 of 2009, it is urged by the petitioner that some vital/pivotal documents were allowed to be added on in the first envelope after the first envelope was opened. It is also urged before us that the successful tenderer was also permitted to carry out corrections behind the back of the petitioner which has ultimately resulted in deprivation of the petitioner from getting tender. A common ground is raised in these three petitions that since the petitioners were successful tenderers who were executing the contract of loading and unloading of the food grains prior to the issuance of tender notice, the work order ought to have been issued in favour of the petitioners and the tender notice ought not to have been published. 5. On notice being issued to the respondents, learned Assistant Government Pleader has submitted affidavit-in-reply on behalf of one of 5 the respondents and has explained that the rules permit a tenderer to submit certain documents of technical nature, if inadvertently those documents were not submitted in envelope No.1. It is also stated that the rates quoted by the successful tenderer were the lowest rates which were matched by the rates quoted by the petitioners and as at the time of opening of the financial bid the petitioners were not present the tender was allotted to respondent No.4. The successful tenderer has also filed his affidavit-in-reply and has denied that the correction in the financial bid was carried out surreptitiously after opening of the financial bid. 6. In respect of the challenge to the grant of permission by the respondents to the successful tenderer of submitting certain documents or including certain documents in the first envelope, our attention has been invited to the rules as published by the Government dated 4.7.2008. The aforesaid rules, Rule 3 (c) deprecated the practice of the tenderer in submitting certain documents at the time of opening of the envelopes. The exception to this rule provides that in order to encourage healthy competition, particularly the vis-a-vis rates, the tenderers would be permitted to submit certain documents of technical nature which were inadvertently not included in first envelope but this could be done by the tenderer before opening of the financial bid. Relying on the aforesaid exception to Rule 3(c), it is urged by the learned Assistant Government Pleader that the authorities have permitted the successful tenderer to submit certain documents which documents ought to have been included 6 in envelope No.1. Shri S.P.Brahme, learned Counsel for the petitioner in Writ Petition No.860 of 2009 has urged before us that in fact, documents of vital importance or pivotal documents were permitted to be added by the authorities which was wholly inappropriate on their parts. Whether the documents are pivotal or vital or whether they were documents of minor aspects relating to technical deficiencies is a question to be decided by the authorities and not by the Court. In any event, the documents which were included were related to the submission of affidavits by the successful tenderer. Since the authorities have found that the documents seeking rectification of only a technical aspect of the matter were filed and since the rules permit inclusion of certain documents by the tenderer, we do not find it a fit case for issuance of a writ of certiorari. Insofar as opening of financial bid is concerned, since the petitioners were absent, obviously the tender was allotted to the respondent No.4 i.e. successful tenderer. There is no material to show that alterations were made after opening of the technical bid. In the absence of such material, therefore, no inference can be drawn that the alteration could have been done depriving the petitioners of allotment of tender. 7. In respect of third submission that the petitioners ought to have been continued and the tender notice ought not to have been issued in favour of successful tenderer, according to us, needs no consideration at this stage. 7 8. Shri Brahme, learned Counsel for the petitioner placed reliance on the judgment of Supreme Court in M/s Monarch Infrastructure (P) Ltd. v. Commissioner, Ulhasnagar Municipal Corporation and others, AIR 2000 SUPREME COURT 2272 and M/s Poddar Steel Corporation v. M/s.Ganesh Engineering Works and others, AIR 1991 SUPREME COURT 1579. In the fact situation which we have adverted to above, according to us the ratio laid down in the said judgments is not applicable to the present case. 9. After considering the rival submissions advanced before us by the learned Counsel for the parties, we find that no case has been made out by the petitioners warranting any interference in awarding the tender to successful tenderer. In the light of that, the petitions are summarily dismissed with no order as to costs. ( A.V.POTDAR, J.) ( P.V.HARDAS, J.) vvr/1480.09wp