1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO.5768 OF 2010 Zaheer Abdul Kadir Khan ... PETITIONER VERSUS The Union of India & anr. ... RESPONDENTS ..... Shri P.S. Dighe, Advocate for the petitioner Shri Alok Sharma, Assistant Solicitor General for respondent No.1 Mrs. Anjali Dube, Advocate for respondent No.2. ..... CORAM: P.V. HARDAS & N.D. DESHPANDE, JJ. DATED: 5th July, 2010 PER COURT : 1. This is a petition under Article 226 of the Constitution of India, by which the petitioner challenges the terms of the tender notice issued by the respondents for transportation of the oil. The term under challenge in the said tender notice is term 10(a), which reads thus : 10-a) The transporters have to offer a minimum of 5 (FIVE) tank trucks, with ownership of at least 2 (TWO) tank trucks, in their name i.e. Firm or Partner or Director (TTs owned by Directors of 2 a Ltd. firm cannot be treated as owned TT) or Proprietor. Additional Tank Trucks offered may be owned or attached. The dealers have to offer minimum (1) one own tank truck. In case, the transporter/ dealer is offering higher capacity Tank Trucks and they do not own/ possess the minimum no. of Tank Trucks required as mentioned above i.e. 2 (TWO) tank trucks by transporters and 1 (ONE) tank truck by dealers, at the time of opening of tender, they can do so if they can take possession of the Tank Trucks by the time of contract execution. In such cases, they need to submit an affidavit in prescribed format that they will have physical possession & ownership of the vehicle at the time of contract execution.” Term 9(c) reads thus : “9(c) In case of Multiple rates, the priority of loading will be given to tenderers accepting lowest rate and also preference of loads as far as possible will be given to these TTs. In other words, as per the policy of the Corporation, the tenderer accepting the lowest rate is expected to get better percentage of business.” 3 2. Mr. Dighe, learned counsel for the petitioner has urged before us that the insistence of the respondents in holding only those transporters as eligible who own more than 5 tankers is discriminatory as it discriminates between those transporters and the transporters who own and possess less than 5 tankers. It is, therefore, urged before us that an artificial classification is created in respect of the single class of transporters. It is further urged before us that the petitioner is a transporter who owns and possesses only one tanker and is thus, rendered ineligible on account of the condition at 10-a. Reliance is placed by the learned counsel for the petitioner on the judgment of the Madras High Court in R. Shahajahan s/o Rahimankhan & ors. 3. Turning to the first submission of the learned counsel for the petitioner, according to us, clause 10-a of the tender notice does not discriminate between those tenderers who own and possess more than 5 tankers and those transporters who own less than 5 tankers. Tne transporters as a class is treated, but the eligibility is restricted to those transporters who possess more than 5 tankers. There is no discrimination whatsoever in treating the transporters as a class. The 4 respondents are perfectly within their rights in prescribing the eligibility of those transporters who own more than 5 tankers to be eligible to participate in the tender process. We do not subscribe to the view expressed by the learned Single Judge of the Madras High Court, wherein the learned Single Judge of the Madras High Court has held that there would be discrimination between those transporters who own 10 tankers and those transporters who own less than 10 tankers. 4. The other challenge of the learned counsel for the petitioner in respect of clause 9-c is again in the realm of contract. It would not be open for this Court to scrutinise the terms and conditions and decide whether those terms and conditions either in respect of eligibility or other conditions ought or ought not to have been incorporated in the tender notice. 5. A reference may at this juncture may usefully be made to the judgment of the Supreme Court in Meerut Development Authority Vs. Association of Management Studies and another etc. (2009) 6 Supreme Court Cases 171, the Supreme Court in the said judgment has held that, 5 “A tender is an offer. It is something which invites and is communicated to notify acceptance. It must be unconditional; must be in the proper form, the person by whom tender is made must be able to and willing to perform his obligations. The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. However, a limited judicial review may be available in cases where it is established that the terms of the invitation to tender were so tailor-made to suit the convenience of any particular person with a view to eliminate all others from participating in the bidding process. 6. Our attention has also been invited to a recent judgment of the Division Bench of this Court in Bee Jay Contractors Vs. Hindustan Petroleum Corporation Limited ( 2010 (3) Bom.C.R. 549 ). The Division Bench of this Court, by relying upon the judgment of the Supreme Court, has held that the conditions of invitation to tender were not open for judicial review. 6 7. After hearing the learned counsel for the petitioner as well as the learned counsel for the respondents, according to us, this petition is completely misconceived. The petitioner is ineligible by virtue of the conditions of the eligibility and as we have held that there is no discrimination whatsoever between a transporter who owns 5 tankers and a transporter who owns more than 5 tankers, we do not notice any merit in the petition and the petition is, therefore, summarily dismissed with no order as to costs. 8. Copy, duly authenticated by the Sheristedar be issued to learned counsel for the petitioner. (N.D. DESHPANDE, J.) (P.V. HARDAS, J.) fmp/wp5768.10