Prakash Askaran Jain vs The State Of Maharashtra And ...
2017 Latest Caselaw 7335 Bom

                                        (1)                              907 wp 9967.17

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD


                       WRIT PETITION NO. 9967 OF 2017


      Prakash s/o Askaran Jain,,
      Age : 63 years, Occ. Business,
      R/o Shahada, District Nandurbar.                       ..       Petitioner

                       Versus

1.    The State of Maharashtra,
      Through its Principal Secretary,
      Food, Civil Supplies and Consumer
      Protection Department,
      Mantralaya, Mumbai - 32.

2.    The Collector,
      Nandurbar.

3.    The District Supply Officer,
      Nandurbar.                                             ..       Respondents

                                    ----
Miss P.S. Talekar, Advocate for the petitioner.
Mr. A.B. Girase, Government Pleader for respondent-State.
                                     ---

                                    CORAM :     S.V. GANGAPURWALA &
                                                MANGESH S. PATIL, JJ.

                                    DATE      : 20.09.2017


ORAL JUDGMENT (Per S.V. Gangapurwala, J.):-

.              Rule.      Rule made returnable forthwith. With the consent of

parties taken up for final hearing.





                                       (2)                             907 wp 9967.17

2. The petitioner has filled in tender pursuant to the notice

dated 11.05.2017. The petitioner's tender was found to be the lowest,

however, as the petitioner had quoted rate 47% more than the base price

the Collector, Nandurbar referred it to the Government. Before the

Government, the petitioner was directed to negotiate and bring the rate

down to 5% above the base rate. The petitioner accepted the same, in

view of that the Secretary referred the matter to the Collector with

direction to accept the tender of the petitioner and enter into an

agreement. The Collector called upon the petitioner to comply with the

terms such as furnishing the bank guarantee and the security deposit.

The petitioner complied with the same by furnishing bank guarantee of

Rupees One Hundred and Fifty Lakhs and also deposited the security

deposit of Rupees Fifteen Lakhs, only ministerial act of execution of

agreement has remained to take place. In the interregnum, the Hon'ble

Minister directed the Collector not to accept the tender above base price.

The petitioner has assailed the said action in the present writ petition.

3. During the pendency of the writ petition, it appears that, the

respondents had issued the fresh tender, this Court had allowed the

tender process to proceed, however, had directed not to finalise the

tender.

(3) 907 wp 9967.17

4. Miss Talekar, the learned counsel for the petitioner submits

that the action of the respondents is arbitrary, in fact all the terms of the

tender were complied by the petitioner. The contract was in fact almost

concluded and at that point of time the respondents resiled and the same

is not permissible. The respondents cannot change the terms of the

tender after the tender process is completed. The learned counsel

submits that in other district such as Nashik the similar tender was

accepted @ 5% above the base price. The petitioner is being

discriminated. The learned counsel further submits that, even the fresh

tenders are issued, the respondents have received offers above @ 15%

of the base price. The learned counsel submits that, even otherwise the

purpose which is stated in the affidavit in reply i.e. to save the public

exchequer, would not serve any purpose.

5. Mr. Girase, the learned Government Pleader submits that the

whole exercise was done with a view to save the public money. No

concluded contract exists between the parties, as such, the respondents

had every right to withdraw the said tender before the contract is

concluded. The learned Government Pleader accepts that in the fresh

tenders three offers are received and all the three offers are 15% above

the base price.

(4) 907 wp 9967.17

6. We have considered the submissions and the documents on

record.

7. There is no dispute with the factual matrix that the

petitioner's offer pursuant to the tender in question was found acceptable

and the Collector had referred it to the Government as the said tender

was 47% above the base price. It appears that the petitioner was made

to negotiate before the Government. The petitioner accepted the

negotiation and further consented to accept the tender @ 5% above the

base price. Pursuant thereto, the Secretary of the Food and Civil Supplies

communicated the decision of the Government to the Collector directing

the Collector to accept the tender of the petitioner @ 5% above the base

price and get the agreement executed and direct the petitioner to comply

with the terms and conditions. The Collector, thereafter, asked the

present petitioner to furnish the bank guarantee, which the petitioner

complied by furnishing bank guarantee of Rupees One Hundred and Fifty

Lakhs and also deposited the security deposit of Rupees Fifteen Lakhs.

The petitioner had complied with all the terms and conditions on his part,

only ministerial act of the execution of the agreement was to be

performed.

8. No doubt the concluded contract would come into existence

(5) 907 wp 9967.17

only after the execution of the agreement and issuance of the work

order, however, it would be seen that the petitioner had performed his

part and complied with all the terms in its entirety. Principally the tender

of the petitioner was also accepted when the Secretary on behalf of the

Government directed the Collector to accept the tender of the petitioner

and perform further acts.

9. It was only at the intervention of the Hon'ble Minister that

the further process was stalled by the Collector. According to the

respondents, it was with a bonafide intention of saving the public

exchequer the Hon'ble Minister had intervened.

10. Be that as it may, for another district i.e. Nashik similar the

tender was accepted @ 5% above the base price. In view of that, the

action of the respondents in not accepting the tender after entire process

was completed is arbitrary. Arbitrariness has no role in a civilized society

governed by the rule of law. Arbitrariness is antithesis to the rule of law,

justice, equity and good conscious. The State cannot have different

yardsticks for different tenderists.

11. The intention of the respondent in not completing the

contract on the ground that they wanted to save the public exchequer,

(6) 907 wp 9967.17

would not materialise, in view of the fact that after fresh tenders were

issued the persons offered their tender at much higher price, one had

offered @ 15% above the base price, another had offered @51% above

the base price and the third one had offered @ 55% above the base

price. Even otherwise, no vested right is created in favour of the persons

who had offered tender pursuant to the issuance of fresh tender notice,

as this Court had directed the respondents not to finalise the tender.

12. In view of the aforesaid, the respondents shall complete the

further process and execution of agreement in favour of the petitioner by

accepting the tender submitted by the petitioner pursuant to the tender

notice dated 11.05.2017 @5% above the base price. Writ petition is

accordingly allowed. Rule accordingly made absolute in above terms. No

costs. None appears for the intervener, civil application also stands

disposed of.

[MANGESH S. PATIL, J.] [S.V. GANGAPURWALA, J.]

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