(1) wp1634-1827-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 1634 OF 2011 Omprakash Shriram Holani PETITIONER VERSUS The Union of India and others RESPONDENTS .... Mr. Swapnil S. Rathi, advocate for the petitioner. Mr. S.D. Hiwrekar, advocate for respondents No. 2 and 3. .... WITH WRIT PETITION NO. 1827 OF 2011 M/s Ramprasad Toshniwal Wahatuk Thekedar through its Proprietor Ramprasad s/o Gopikishan Toshniwal PETITIONER VERSUS The Union of India and others RESPONDENTS .... Mr. Dhananjay M. Shinde, advocate for the petitioner. .... CORAM : D.B. BHOSALE & M.T. JOSHI, JJ. DATED : 23rd MARCH, 2011 (2) wp1634-1827-11 ORAL ORDER (PER M.T. JOSHI, J.) : 1. Heard. 2. In both these petitions, the petitioners are challenging a condition put in the Tender Notice, specifying the eligibility of experience of handling 2 to 3 rakes per month for three financial years immediately preceding the contract year. 3. The tenders were invited by the relevant respondent for appointment of regular Handling and Transport Contractor for handling and transport of the Foodgrains stocks of various depositors at the Central Warehouse at Nanded. The condition No. 4 as prescribed is as under : "Certificate of experience for preceding three financial years and handling of average minimum 2 - 3 rakes per month in a year by the tenderer." The petitioners claimed that while issuing tender notice at Latur and Miraj by the same (3) wp1634-1827-11 respondent/authority, requirement of such experience is not mentioned and a condition to that effect is not put. Petitioners further claimed that though they are experienced transporters, they had no such specific experience. Thus, according to the petitioners, there is discrimination and, therefore, by the present petition, they seek the following relief : "By issuing writ of certiorari and any other writ, order or direction in like nature, eligibility condition of experience mentioned vide clause No. 4 in the tender notice issued by respondent No. 2 herein for handling and transportation contract at Nanded (at annexure `B') for the year 2011 to 2013 may kindly be quashed and set aside." 4. Respondents No. 2 and 3, in their affidavit- in-reply as well as during argument, submitted that there is material difference between the handling of food-grains at Nanded and at other places. (4) wp1634-1827-11 Respondents No. 2 and 3, in paras 9 and 10 of their affidavit-in-reply, have stated as under : "9. The FCI moves food grains stocks from one destination to another as per their requirement by rail, as such, wherever capacity of warehouses is more such as Nanded arrival and dispatch of such rail movement is very frequent. The free time for unloading of the stock from the rail wagons is 9 hours whereas stocks are to be removed from the rail goods shed within 24 hrs. and are required to be shifted to CWC godown which is at Jawaharnagar 11 Kms. away from Maltakdi Railway goods-shed, failing which heavy demurrage and wharface is levied by railway authorities. 10. Keeping in view of the heavy transaction/handling and transportation of stocks at central warehouse at Nanded in comparison to other central warehouses having less storage capacity and turnover, placement of rakes by railway authorities at Nanded is any time within 24 hrs. therefore contractor must be fully equipped to start unloading at any time. Thus, it was felt that at central warehouse Nanded, the contractor should be more experienced, (5) wp1634-1827-11 financially sound competent and should be in a position to give smooth service." It was submitted by Mr. S.D. Hivrekar, learned counsel for respondents No. 2 and 3 that the Court cannot strike down the terms of the tender unless those were shown to be arbitrary or discriminatory or actuated by malice. Reliance is placed on "Mega Enterprises vs. State of Maharashtra and others" 2007 (2) Mh.L.J. 713. 5. Considering all the aspects of the case and the local condition at Nanded, we do not find that the condition as prescribed in the tender notice is arbitrary. 6. In the result, the petitions are dismissed summarily. [M.T. JOSHI, J.] [D.B. BHOSALE, J.] NPJ/wp1634-1827-11