1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. Writ Petition No. 1026 of 2008 [S.P. Sahu Vs. Divisional Controller, MSRTC & ors.] Office Notes, Office Memoranda Coram appearances, Court's and Registrar's orders. orders or directions Court's or Judge's Orders. ______________________________________________________________________________ Mr. J.T. Gilda, Adv., for the petitioner. Mr. V.G. Wankhede, Adv., for respondent no.1. Mr. V. M. Deshpande, Adv., for respondent no.2. -------- Coram : B.H. MARLAPALLE AND A.H. JOSHI, JJ. Date : 21st October, 2008. 1. Heard Mr. Gilda, learned counsel for the petitioner. Mr. V.G. Wankhede, learned counsel, appears for respondent no.1, and Mr. V.M. Deshpande, learned Counsel, for respondent no.2. 2. This petition filed under Article 226 of the Constitution prays for the following substantial relief:- “by Writ of Mandamus or any other appropriate Writ, order or direction, the respondent no.1 may kindly be directed to accept the tender of the petitioner for running the S.T. Canteen at Amravati, by quashing the communication dated 23rd February, 2008 issued by the respondent No. 1 to the petitioner rejecting the tender of the petitioner.” 2 3. By way of interim relief, the petitioner prayed for restraining the respondent no.1 from executing the agreement in favour of respondent no.2 for running the canteen, in question. 4. Though the petition was amended so as to challenge the acceptance of the tender of respondent no.2 and signing an agreement in his favour, there was no amendment in the Prayer Clause, so as to set aside the agreement signed by the respondent no.1 in favour of the said respondent. 5. On 27th August, 2007, the respondent no.1 published a Proclamation inviting tenders for running the canteen at the S.T. Bus Stand, Amravati, and the last date fixed to receive the tenders was 17th September, 2007. In all eight tenders were received by respondent no.1, and the petitioner was one of these eight tenderers. 6. By a communication dated 20th March, 2008, the petitioner was informed by respondent no.1 that this tender was rejected and he was called upon to collect the Deposit Amount of Rs. 1,12,650-00. This communication is under challenge in the petition. 7. The respondent no.1 has filed an 3 Affidavit-in-Reply, and has submitted that out of eight, only five tenderers were found to be eligible and all these five tenderers were invited for interview on 31st October, 2007. The petitioner was one of the five tenderers who was also interviewed on 31st October, 2007. 8. The tender amount quoted by the petitioner was Rs. 45,786-00, whereas the respondent no.2 had quoted Rs.45,550-00. Thus, the petitioner's tender was higher by an amount of Rs. 236-00 per month. 9. It is further submitted by respondent no.1 that the documents submitted by the petitioner were not in order and, therefore, he was not considered. The petitioner had submitted the Tax Receipt dated 31st March, 2006 issued by the Amravati Municipal Corporation indicating it to be in respect of a joint property between the petitioner and his brother. It is further claimed by respondent no.1 that there was no other document accompanying the tender to show financial status of the petitioner, and he had submitted an Income Certificate dated 14th September, 2007 issued by the Special Executive Magistrate, Amravati, claiming that his annual income was Rs.1,00,000-00. This Certificate did not disclose the source of income of the petitioner. 4 10. Mr. Gilda, learned counsel for the petitioner, submitted that the reasons assigned by the respondent no.1 for declining to accept the offer of the petitioner are false and by way of afterthought. He further submitted that the respondent no.1 did not treat the respondent no.2 as ineligible, despite the fact that he did not fulfill two essential conditions of the tender, namely [a] he had not submitted names of two guarantors with their consent letters, and [b] there was no proof of payment of Income Tax. Mr. Gilda also invited our attention to the Income Tax Return for the year 2006-07 claimed to have been submitted by the petitioner along with the tender, and not the Income Certificate issued by the Special Executive Magistrate. 11. This Court in its order dated 5th March, 2008 mentioned that the process of tender would be subject to the result of this petition, and obviously, it was under the belief that the tender was not finalized and allotted to anyone, and this is also obvious from the interim prayer made by the petitioner. 12. It has now been pointed out that the respondent no.1 entered into an agreement with respondent no.2 on 28th August, 2008 and the said respondent is running the canteen as of now. Mr. Gilda, 5 learned Counsel for the petitioner, submitted that the contract signed is initially for a period of three years, but it could be renewed from time to time and totally for a period of fourteen years. 13. The eligibility either of the petitioner or the respondent no.2 to have the contract awarded to run the canteen at S.T. Bus Stand, Amravati, is a disputed question of fact, and in any case, as of now, the respondent no.2 is running the canteen. The period of contract is initially for three years, but to be extended upto fourteen years and, therefore, it would be appropriate that the petitioner resorts to a common law remedy, namely filing of a Civil Suit, to challenge the agreement signed between the respondent no.1 and respondent no.2, more so it has now been claimed by Mr. Gilda that the person signing the agreement on behalf of respondent no.1 is not the competent official. 14. Hence the petition is rejected with liberty to the petitioner to file a Civil Suit. JUDGE JUDGE |hedau|