1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.997 OF 2009 Rahul Traders, Through Prop. Prakash S/o.Sakharam Patil, Age-39 years, Occu-Business (Rahul Traders) R/o.25, Gajanan Colony, Shahunagar, Jalgaon. PETITIONER VERSUS 1. The State of Maharashtra, through Secretary, Tribal Development Department, Mantralaya, Mumbai-400032. 2. The Commissionerate of Tribal Development, Maharashtra State, Nasik, Adivasi Vikas Bhavan, First Floor, Old Bombay Agra Road, Nasik. 3. The Additional Commissioner, Tribal Development, Nasik. 4. The Project Officer, Integrated Tribal Development Project, Yawal, Dist. Jalgaon. 5. Lokshahi Mahila Gruha-Udyog Sanstha, Through its Secretary, Jalgaon. RESPONDENTS Mr.B.R.Warma, learned counsel for the petitioner. Mr.V.H.Dighe, learned AGP for respondent no.1 to 4 2 Mr.S.V.Kurundkar, learned AGP for respondent no.5 (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 24/09/2009 ORAL JUDGMENT : (Per P.V.Hardas, J.) 1. This petition questions the acceptance of the tender of 5th respondent of 04/12/2008 for providing meals to the Boy’s Hostel at Jalgaon. Incidentally it may be stated that initially the 5th respondent was served with notice, but the 5th respondent chose not to appear and consequently a notice afresh was issued to the 5th respondent intimating him that this petition is likely to be decided at the stage of admission itself. Despite receipt of the notice, no appearance is put on behalf of respondent no.5. Pursuant to our notice, we accordingly issue rule making it returnable forthwith and by consent of the parties, decide the petition. 2. Such of the facts as are necessary for the decision of this petition may briefly be stated as thus : A tender notice at Exh.A dated 23/04/2008 came to be issued in the local newspaper inviting tenders for providing meals to the occupants of the Boy’s Hostel at Jalgaon. The petitioner submitted his tender in respect of supplying meals to the occupants of the Boy’s Hostel at Jalgaon by quoting Rs.1,399/- per student per month. Alongwith the tender of the petitioner, 4 other tenders were received. Out of the 4 tenders, it appears that the tender of 5th respondent as 3 well as another came to be rejected by the Authorities and the aforesaid order rejecting the tender of the 5th respondent as well as another is at Exh.C dated 07.08.2008/14.08.2008. We need not at this juncture dwell on the reasons which impend the authorities to reject the tender of 5th respondent. Suffice it to state that the tenders of only 3 persons including the petitioner were opened. The petitioner has quoted the rate of Rs.1,399/- per student per month while the other two eligible tenderers have quoted Rs.1,426/- and 1,600/- per student per month respectively. The document annexed to this petition by the petitioner at Exh.B collectively discloses that the authorities who had scrutinized the tenders, have re-commended acceptance of tender of the petitioner. It appears that subsequent thereto, surreptitiously the tender of the 5th respondent was opened. On finding that the 5th respondent had quoted an amount of Rs, 850/- per student per month, the tender of 5th respondent came to be accepted. 3. On notice being issued to the respondents, the respondents have filed their affidavit in reply. In the affidavit in reply which is sworned by one Shriram Eknath Umale, Assistant Project Officer, Integrated Tribal Development Project, Yawal Dist. Jalgaon, states that in all 5 tenders had been received in the office of respondent no. 4 and out of 5 tenders, 2 tenders were not opened by The Project Level Committee for the reasons that in one tender the name of the hostel was not mentioned and in one tender copy of the challan was not enclosed. We have already adverted to an order which had been 4 passed by the respondents and which is annexed to the petition, which discloses that the tender of the 5th respondent and another came to be rejected for the reasons which are now disclosed in the affidavit in reply. The affidavit in reply further states that the Project Level Committee opened the remaining 3 tenders and noticed that the rates quoted in the tenders were higher than the prevailing market rate, and therefore the Committee embarked of an exercise of negotiation in respect of the rates with the tenderers. Accordingly on 22/09/2008, the petitioner was called for negotiation and agreed to reduce his rate from Rs.1399/- to Rs.1300/- per student per month. The affidavit in reply further discloses that the rate was found to be higher and consequently The Additional Tribal Commissioner, Nashik decided on 07/10/2008 to open the other two tenders which had not been opened by the Project Level Committee. It appears that the respondents found that the 5th respondent has produced receipt in respect of purchase of the tender form for Jalgaon Boys Hostel and it was considered as sufficient compliance by the Additional Commissioner, Nashik and therefore the two tenders which had been rejected earlier, came to be opened. On noticing that the rates quoted by the 5th respondent was the lowest rate, the aforesaid tender was accepted. 4. Shri.Warma, learned counsel for the petitioner has urged before us that the documents filed by the petitioner clearly discloses that upon opening of the 3 tenders, the rates quoted by the petitioner was found to be lowest and the Committee therefore accepted the 5 tender of the petitioner. It is further stated that the tender of the 5th respondent had been rejected /cancelled and consequently the aforesaid tender could not have been opened and the tender could not have been accepted. According to Mr.Warma, learned counsel for the petitioner, the entire process of arriving at the decision smacks of arbitrariness and favouritism. It is urged that the respondents in the exercise of acceptance of the tender of 5th respondent have completely flouted the Wednesbury Principle and consequently the decision arrived at smacks of arbitrariness. Shri.S.V.Kurundkar, learned AGP on behalf of the respondents has urged before us that the respondents have undoubted authority to open the tender which have not been opened. Since the rate quoted by the petitioner, despite the rejection, was found to be exorbitant and consequently the tender of the 5th respondent was opened. 5. A reference at this juncture may usefully be made to the judgment of Tata Cellular versus Union of India, reported in 1994 (6) Supreme Court Cases 651. In the aforesaid judgment, the Supreme Court has held that : The principles of judicial review would apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favouritism. However, there are inherent limitations in exercise of that power of judicial review. Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State. The right to refuse the lowest or any other tender 6 is always available to the Government. But, the principles laid down in Article 14 of the Constitution have to be kept in view while accepting or refusing a tender. There can be no question of infringement of Article 14 if the Government tries to get the best person or the best quotation. The right to choose can not be considered to be an arbitrary power. Of course, if the said power is exercised for any collateral purpose the exercise of that power will be struck down. Judicial quest in administrative matters has been to find the right balance between the administrative discretion to decide matters whether contractual or political in nature or issues of social policy; thus they are not essentially justiciable and the need to remedy any unfairness. Such an unfairness is set right by judicial review. 6. Undisputedly the tender of the 5th respondent had been rejected/cancelled by the respondents. The reasons as to why the tender of the 5th respondent was rejected or cancelled are not germane for the decision of this petition. Suffice it to say that the authorities have decided not to open the tender of 5th respondent. Consequent to the aforesaid decision, the tender of the petitioner and the tender of other 2 tenderers came to be opened. The rate quoted by the petitioner was found to be lowest and despite negotiation, the rate quoted by the petitioner was noticed to be the lowest. If the authorities had found that the rate quoted by the petitioner, despite 7 the negotiation, was an exorbitant rate, nothing prevented the authorities from cancelling the entire tender process and go in for fresh tender process. The entire exercise of the respondents therefore smacks of arbitrariness and is unsustainable in Law. 7. We accordingly allow this petition and quash and set aside the decision of the respondents in accepting the tender of 5th respondent. It is needless to state that the authorities would have the total discretion in respect of taking a decision for issuance of a fresh tender notice as the period is virtually coming to an end. We expect authorities to act fairly in the manner of opening of the tender and the acceptance of the bids. 8. We accordingly make the rule absolute on the above terms with costs, which would quantify at Rs.15,000/- to be paid by respondent no.2 and 4. (A.V.POTDAR, J.) (P.V.HARDAS, J.) khs/SEP 2009/wp997-09