ORDER
H. W. Dhabe, J.
1. Parties by counsel. Rule. Heard forthwith. The Petitioner challenges in this writ petition the work Order/Letter of Intent/ awarding of a Contract in favour of the respondent No. 2 in respect of the part of the work which was notified as per the Tender Notice dated 13-1-1993. He has also claimed that the Tender given by the respondent No. 2 should be declared as invalid and that it should be declared that the petitioner is entitled to the whole of the contract work notified as per the aforesaid Tender Notice dated 13-1-1993.
2. The facts are that the respondent No. 1 Maharashtra State Electricity Board (for short ‘the Board’) issued a Tender Notice published in the issue of the Daily Newspaper “Hitvada” dated 13th January, 1993, according to which the offers were invited for liasion work including supervision of loading, quantity, quality and movement of coal by rail system for a period of 12 months. The estimated cost of such Tender work was Rs. 2,70,00,000/- approximately. The Tender document had to be in the prescribed proforma and was supplied on payment to the interested parties from 25th January, 1993 to 4th February, 1993. The last date for submission of Tender Documents was 9-2-1993 upto 14.00 hours. The tenders were to be opened on 9-2-1993 at 14.30 hours.
3. The petitioner, which is a Private Limited Company as well as the respondent No. 2 which is a Public Limited Company submitted their tender documents to the Chief Engineer (Gen. T.F. & C), M.S.E.B., Nagpur amongst others. The Petitioner by his tender document has quoted the rate of 0.61 ps per MT for the whole of the contract work described in the Tender Notice. Perusal of its Tender document does not show that it wanted to make or claim any deviation from any of the terms and conditions of the Tender nor does it show that for part of the work a separate rate is quoted by it.
4. As regards the Tender document of the respondent No. 2, it shows that the rate quoted by it for the whole of the contract work is 0.65 Ps per MT. It is pertinent to see that in Annexure-F of the Tender Document of the respondent No. 2 which is a deviation sheet and is in a prescribed proforma, the respondent No. 2 has stated that its offer quoted 0.65 Paise per MT for the total scope of the Tender work is valid only if the total contract is exclusively awarded to it. It has further stated in the said Annexure-F that if the contract work to be awarded to it is in part or is to be shared with more than one Contractor, its rate will stand enhanced to Rs. 0.85 Ps per MT or whatever is the rate at which the contract work is finalised for other contractors. It is then stated that there are no other technical/commercial deviations, other than those stated above. Since para 2 of the above deviation sheet is material for the purpose of this petition, it is reproduced below for ready reference.
“(2) “Should the contract be awarded to us in part or to be shared with more than one Contractor, our rate will stand enhanced to Rs. 0.80 paise per M.T. or whatever is the rate at which the contract work is finalised for other contractors.”
5. After the tenders were opened, the respondent No. 1 found that there were four valid tenders out of which one was of the petitioner and another of the respondent No. 2. The respondent No. 1 also found that the rate quoted by the petitioner was the lowest. After scrutinising the tender documents, the respondent No. 1 decided to divide the contract-work between the petitioner and the respondent No. 2. Accordingly, by its work order dated 16-2-1993, it offered part of the contract work to the petitioner upon the terms and conditions referred to in the said letter dated 16-2-1993. By its letter dated 17-2-1993, the petitioner acknowledged the above work order dated 16-2-1993 and communicated its acceptance to the respondent No. 1. By its work-order dated the same i.e. 16-2-1993, the respondent No. 1 offered the remainder of the contract work to the respondent No. 2 but at the same rate as quoted by the petitioner i.e. Rs. 0.61 Ps per M.T. Feeling aggrieved by the award of the part of the Contract work to the respondent No. 2, the petitioner has preferred the instant writ petition in this Court.
6. The Principal contention urged on behalf of the petitioner is that the Award of the part of the contract work to the respondent No. 2 is arbitrary, discriminatory and violative of Art. 14 of the Constitution of India and is also contrary to the terms and conditions of the Tender Contract. It is urged that the deviation in the terms and conditions mentioned in Annexure-F of the Tender document, by that the respondent No. 2 viz. that he is ready to accept the rate at which the contract is finalised for other contractors is no offer in law at all and therefore, the part of the contract work could not have been granted to the respondent No. 2 at the rate offered by the petitioner which being the lowest was accepted by the respondent No. 1. It is also urged on behalf of the petitioner that the rate offered by it was for the whole of the contract work in accordance with the requirement of the proforma in Annexure D relating to price-Schedule which provided quotation of rate for the total scope of the work only and not for part of the work and therefore, if the respondent No. 1 were to decide to split up the contract work amongst two or more contractors whose tender documents were valid, it should have held negotiations with them and should have given them an opportunity to quote tender rates in respect of the part of the contract work only. The above procedure not having been followed by the respondent No. 1
the contention is that the award of part of the contract work to the respondent No. 2 is illegal and is violative of Art. 14 of the Constitution of India.
7. On the other hand, it is urged on behalf of the respondent No. 1 that in the facts and circumstances of the case and in view of the terms and conditions of the Tender accepted by the petitioner, it is not open to him to claim that the whole of the contract work should have been awarded to it and that the part of the contract work granted in favour of the respondent No. 2 is illegal and is violative of Art. 14 of the Constitution of India. It is also urged that even otherwise there is no violation of Art. 14 of the Constitution of India about which the petitioner can complain of, because as per the terms and conditions of the Tender Notice, he had agreed to accept the part of the contract work and since no rate for part of the contract work was quoted by him, it was presumed that he was ready to carry out the part of the contract work awarded to him at the same rate which he had quoted for the total scope of the contract work, particularly when, without any demur, it immediately accepted the award of part of the contract work at the same rate as per its letter dated 17-2-1993. It is then urged that there is no unfairness shown to the petitioner or any discriminatory treatment meted out to him because the remaining part of the contract work is awarded to the respondent No. 2 at the same rate viz. 0.61 PS quoted by it and not at any rate higher than the said rate.
8. For proper appreciation of their rival
submissions parties have taken us through
proforma of the tender documents including
the terms and conditions of the Tender in
question. We shall only refer to some of the
relevant terms and conditions of the tender
respondent No. 1 that in the (sic) in
question.
Clause 3 of the Instruction to the tenderers relates to submission of tenders. It provides that the tenderer should submit the tender in the prescribed form including its Annexure A to F, duly filled in accordance with the terms and conditions of tender in the manner provided thereunder. It then provides that if
he fails to submit his offer along with the annexures and all schedules with details, his offer is liable to be rejected. Clause 6 of the Instructions requires the tenderer to quote his offer in figure as well as in words after perusal of the details given in Annexure D to the tender form relating to the Price Schedule. However according to the said clause 6 the rate quoted in words previals and the tenderer is not allowed to correct any mistake in the quotation of rate after the tender is opened. The tenderer is required to fill in the blanks and quote the rate as provided in the last para of Annexur D i.e. the Price Schedule. What is material to be seen in clause 6 is that if there is any deviation from the break up of percentage prescribed for the quoted rate in Annexure D such deviation would render the tender invalid and the same would be liable to be rejected without any evaluation.
9. At this stage we shall refer to Annexure D of the Tender document. As already stated above, Annexure D of the Tender Document relates to price Schedule. It refers to the various heads of liasion charges comprised in the rate to be quoted for the contract work which can or cannot be varied. Perusal of Annexure D shows that some of the heads of liason charges are further divided into subheads. It is on consideration of the percentages allotted to the above heads and subheads that the bidder is required to quote his rate for the contract work under the Tender in question. The said Annexure D to the tender document then contains a proforma for quotation of rate for the total scope of the work. The said proforma contains a declaration required to be given by the bidder to the effect that the terms and conditions of the tender are acceptable to him subject only to the deviations indicated by him in the deviation schedule and that the rates offered by him are firm and without any escalation during the period of contract and the extension thereof. What is more important to be seen from the point of view of this petition is that the said proforma requires the bidder to declare that he is agreeable to accept the part order against the tender in question in case the Board so desires for whatever reasons.
10. We may at this stage also refer to Annexure D of the Tender Form. It provides that any deviation from the terms and conditions mentioned in Tender documents and not acceptable to the bidder should be specifically mentioned as shown therein. It further provides that the bidder has to state that there are no other technical commercial deviations other than those as stated in said form.
11. Turning to the other relevant clauses of the Instructions to the Tenderers, clause 9 thereof shows that the Board has not bound itself to accept the lowest or any tender. As regards the question whether the Board is bound to give any reason for not accepting the lowest tender although the said clause 9 stipulates that the Board is not bound to give any reason for rejection of any tender, it is not necessary for us to consider in the instant writ petition whether such a term is valid or not. What is material to be seen in clause 9 is that the Board has reserved the right to reduce the scope of the work specified in the tender either in part or whole, if it so desired, during the finalisation of the tender. It has also kept open the option to require the successful tenderer to undertake the work of liaison for the quantity that may be specified for despatch to one destination or several places where the Board’s Power Stations are situated. Clause 13 of the Instructions to Tenderers, which is most material for the purpose of this petition then shows that the Board has reserved, the right to split up the tender contract by dividing and entrusting the work thereunder to one or more tenders and to place an order for a work in part or whole. Clause 14 of the Instructions warns the Tenderer that his tender confirming any deviation addition/allocation or changes in the conditions as stated in Annexures A, B, C, D and E will not be acceptable.
12. It is in the light of the above provisions of the tender documents that we have to consider the question whether there is discrimination practised by the respondent No. 1 Board in awarding part of the contract work to the respondent No. 2. As urged on behalf of the respondent No. 1 Board, it is
material to see that as per Clause 9 of the Instructions to the tenderers, the Board has reserved the right to reduce scope of the work specified in the tender, either in part or whole if so desired during the finalisation of the tender and it is made clear that there shall be option with the Board to require the successful tenderer to undertake the work of liaison for the quantity that may be specified for desptach to one destination or several places where the Board’s power stations are situated. The most important clause for our purpose, however, is clause 13 of the said Instructions, according to which it is open to the Board to divide and entrust the work to one or more tenderers and to place an order for a work in part or whole. It should be pertinently noticed in this regard that the petitioner has not claimed any deviation from the terms in the above clauses 9 and 13 of the Instructions in the Diviation Sheet i.e. Annexure F but has, on the other hand in the last para of Annexure D to the tender document filled in by him agreed to accept part order against the tender in question in case the Board so desired for whatsoever reasons.
13. It may then be seen that when the Board has decided to divide the total contract work between the petitioner and the respondent No. 2, it had issued work order to the petitioner on 16-2-1993 for part of the contract work only to which instead of raising any issue that he was entitled to get the whole of the contract work or that the respondent No. 2 was not entitled to get part of the contract work, the petitioner had immediately communicated his acceptance by his letter dated 17-2-1993 by stating therein that in continuation of his old work, he would carry out the new contract with effect from 19-2-1993. It may, at this stage, be stated that the petitioner has stated “in continuation of his old work” because he was earlier doing the said work under his old contract with the respondent No. 1 Board. The petitioner has thus without any demur not only communicated his acceptance of the work order for part of the contract work as per his letter dated 17-2-1993 but has thereafter pursuant to the same entered on 20-2-1993 i.e. two days after the filing of the instant writ petition on
18-2-1993, into contract with the respondent No. 1 Board in respect of the assignment of the part of the contract work to him only.
14. It is in view of the above facts and circumstances that it is urged on behalf of the respondent No. 1 Board that it is not open to the petitioner to raise the question of discrimination in respect of the part of the contract work being allotted to the respondent No. 2. The learned counsel appearing for the petitioner has, however, urged before us that when a breach of fundamental right is complained of the plea of waiver or estoppel cannot be raised against the same because no person or citizen has a right to waive his fundamental right conferred by Part III of the Constitution. In support of his above proposition, the learned counsel for the petitioner has placed reliance upon the following judgments of the Supreme Court. Basheshar Nath v. Commr. of Income-tax Delhi and Rajasthan, , AIR India v. Nergesh Meerza, . The learned counsel appearing for the respondent No. 1 Board has, however, drawn our attention in this regard to the views expressed by the eminent jurist Shri H.M. Seervai in Volume 1 of his Critical Commentary Constitutional Law of India (Fourth Edition) Pages 426 to 430.
15. It is not necessary for us in the instant case to go into the larger question whether the plea of waiver or estoppel can be set up against the breach of a fundamental right because the question which particularly arises for consideration in the instant case is whether the petitioner is discriminated against while granting part of the contract work to the respondent No. 2. It may be seen that there is no challenge on ground of infringement of Art. 14 of the Constitution to the power of the Board under the above clauses 9 and 13 of the terms and conditions of tender contract in question in the instant case to split up the tender contract i.e. the contract work thereunder amongst to more than one tenderer. On the other hand, the petitioner has accepted the power of the Board to split up the contract when he has made a declaration in Annexure ‘D’ that he is
agreeable to accept the part order against the tender in case the Board so desired for whatever reason/s. As already pointed out, there is no deviation claimed by the petitioner either from the above clauses 9 and 13 of the Instructions to the tenderers or from the above declaration in the last para of Annexure D of the tender form.
16. The only grievance made by the petitioner in this petition is that if the decision was taken by the Board to split up the contract then before awarding it in part to more than one tenderer, it should have given an opportunity to the petitioner to offer its rate for part of the contract work because according to it under the prescribed proforma of tender documents and in particular Annexure D thereof, there was ho scope for offering rate for part of the contract work. It is urged that the proforma of Annexure D i.e. the Price Schedule requires the tenderer to quote the rate for the whole of the contract work and not for the part of the said work for which reason the petitioner had quoted the rate for the whole and not for part of the contract work. It is further urged that if there is departure from the said proforma in Annexure D or from any of the terms and conditions of the tender, the tender form can be rejected as provided in Clauses 3 and 6 of the instructions to the tenderers referred to above.
17. As regards the question whether it was incumbent upon the petitioner to quote the rate only for the whole of the contract work as provided in Annexure D because of the provisions of Clauses 3 and 6 referred to above, the reading of the said clauses does not lead two any such inference. Clause 3 of the instructions requires the tenderer to fill in the necessary information in the prescribed proforma of the tender documents and then to submit them to the respondent No. 1 Board with all Annexure and Schedules and with details, failing which his offer is liable to be rejected. The said clause does not show that no additional information can be given or that no rate for the part of the contract work can be quoted by the petitioner in his tender documents and in particular Annexure D thereof.
18. As regards Clause 6 of the said Instructions, there is no mandate therein that only the rate for the total contract work should be mentioned in Annexure D i.e. the Price Schedule and not the rate for the part of the contract work in case the Board should decide to split up the said contract work although it is true that the proforma of Annexure D only provides for quoting the rate for the total scope of the contract work. Perusal of Clause 6 however shows that its mandate is that the rate quoted in words would prevail and the tenderer would not be allowed to correct his mistake about the rate after the tender is opened. Its further mandate is that any divation from the break-up of the percentages prescribed for various heads and sub-heads in Annexure D would not be permitted or otherwise the tender would be invalid and would be liable to be rejected summarily. In our view, deviation from the break-up of the percentages for various items given in Annexure D, would not mean that the rate cannot be quoted for part of the contract work. The said requirement can be fulfilled if, whole quoting the rate for part of the contract work the said percentages of the various items given therein are maintained.
19. However, it is material to see that when Clause 9 of the Instructions permits reduction and allocation of only part of the contract work and clause 13 thereof permits spliting up of the contract, it would mean that it is open to the tenderer to quote his rate for part of the work if he did not intend to quote the same rate for part of the work which he has quoted for the total scope of the contract work. On the other hand, if he does not do so, it would be reasonable for the Board to presume that he is claiming the same rate for the part of the contract work which he has quoted for the whole of the contract work as has been done in the instant case. The above inference is further fortified in the instant case because even after awarding only part of the contract work to the petitioner, it has not made any grievance that it would not be possible for it to do part of the contract work at the rate quoted by it for the whole of the contract work, but has instead, as per its letter dated 17-12-1992 communicated its acceptance to carry out the part of work awarded at the rate quoted by him for the whole work. In these circumstances, it is difficult to see how the action of the Board in awarding the part of the contract work to the petitioner can be said to be unjust to him or arbitrary or discriminatory.
20. It is clear in the facts and circumstances of the instant case that the rate of the petitioner being the lowest rate is accepted by the respondent No. 1 Board. As regards the question award of part of the contract work we have shown above that the petitioner has accepted the power of the Board to divide and entrust the part contract work to more than one tenderer. Further, as regards the award of part of the contract work, at the rate quoted by him for the whole of the contract work, apart from the fact that no rate for part of the contract work is quoted by it which would show that he was ready to accept part of the work at the said rate quoted by him for the whole of the contract work in fact, he had accepted part of the contract work at the aforesaid rate without any protest or demur and had further entered into a contract with the Board for the part of the contract work at the aforesaid rate. If it thought that the rate for the whole work was not proper or profitable to it for the part of the work it should have on receipt of the work order dated 16-2-1993 informed the Board that there should be negotiations held with it on the question of the rate for part of the work. Instead it accepted the contract work at the rate quoted by it for the total work under the contract.
20A. It may be seen that if, for part of the work, the rate quoted for the whole of the contract work was not adequate or profitable to the petitioner, it would have normally protested to the Board in regard to the same and would have insisted upon it to have negotiations for giving him a proper rate for part of the work to be awarded to it. Similarly, without any protest even the respondent No. 2 has accepted part of the contract work at the said rate offered by the petitioner. These facts would show that the rate offered by the petitioner for the whole
work was proper and adequate for the part of the work also and, therefore, no grievance was made by either the petitioner or the respondent No. 2 against the same.
21. In view of the above facts and circumstances there is no merit in the contention raised on behalf of the petitioner that after the respondent No. 1 Board decided to divide the contract work, it should have held negotiations and should have given an opportunity to the petitioner to quote the rate for part of the contract work so as to comply with the mandate of Art. 14 of the Constitution. The ratio of the Judgment of the Supreme Court in the case of Food Corporation of India v. M/s. Kamdhenu Cattle Feed Industries
and
also its subsequent Judgment in the case of sterling computers Ltd. v. M. & N. Publications Ltd. regarding the requirement to hold negotiations with parties is not therefore, attracted in the facts and circumstances of the instant case.
22. It may be seen that as regards the award of the contract by the Public authorities, it is necessary to bear in mind that, as held by the Supreme Court in its Judgment in the case of Sterling Computers Ltd. cited supra, in regard to the contracts having commercial element, some more discretion has to be conceded to the authorities giving them liberty to assess the overall situation for purpose of taking a decision as to whom the contract should be awarded and at what terms, so that they may enter into contracts with persons, keeping an eye on the augmentation of the revenue, although in such matters also the public authorities have to follow the norms consistent with the mandate of Art. 14 recognised by courts while dealing with public property. It is, however, held by the Supreme Court in the above case that the decisions taken in bona fide manner although not strictly following the norms laid down by the Courts can be upheld on the principle laid down by Justice Homes that Courts white judging the constitutional validity of executive decisions must grant certain measure of freedom of ‘play in the Joints’ to the executive (See Para 12 of the Judgment). Examined in
the light of the above observations of the Supreme Court, it cannot be said that the respondent No. 1 Board has committed any breach of the norms laid down by the Courts in such matters or the breach of the mandate of Art. 14 of the Constitution in the dividing the contract work between the petitioner and the respondent No. 2 at the same rate which is offered by the petitioner.
23. It is further pertinent to see that while awarding part of the contract work to the respondent No. 2, there is no discrimination practised by the respondent No. 1 Board, by awarding any higher rate to the respondent No. 2, because it has awarded part of the contract work to the respondent No. 2 at the same rate at which it has awarded part of the work to the petitioner. The learned counsel for the petitioner has, however, urged before us that the offer of rate given by the respondent No. 2 for part of the contract work is no offer in law at all. As hereinbefore referred to, the respondent No. 2 has submitted in his tender document that if the contract were to be awarded to it in part, or were to be shared with more than one contractor, its rate would stand enhanced to 0.80 ps. per M.T. or whatever is the rate at which the contract work is finalised for other contractors. In considering the above contention raised on behalf of the petitioner, it may be seen that the respondent No. 2 is the next lowest tenderer so far as his respondent for the total contract work is concerned. The learned counsel for the respondent No. 2 has urged before us that the respondent No. 2 has quoted the rate of 0.80 ps. per M.T. for part of the work if the Board were to decide to award only part of the contract work and not the rest, but if the total contract work was to be shared between him and other contractors, his rate would be the same which would be finalised for the other contractors. The learned counsel for the petitioner has challenged the above construction of the offer made by the respondent No. 2 about the award of part of the work only or about sharing of the work.
24. It is not necessary for us to go into the above question about the validity of the offer
made by the respondent No. 2 in regard to the part of the work or sharing of work and, therefore, it is not necessary to construe the language in which the said offer is worded because even if the said offer is construed as no offer in law and is, therefore, excluded from consideration, even then there would be no illegality committed by the Board in making an offer of part of the contract work to the respondent No. 2 and its action in doing so would not be arbitrary, discriminatory or violative of Art. 14 of the Constitution. It is not in dispute that the rate offered by the respondent No. 2 for the whole of the contract work was the lowest rate next to the petitioner. Therefore, when the respondent No. 1 Board decided to divide the contract work between the two contractors it could do so between the two lowest tenderers i.e. the petitioner and the respondent No. 2. Therefore, after awarding the part of the contract work to the petitioner, it was open to the Board to make the offer to the respondent No. 2 for award of the remainder of the work at the rate quoted by the petitioner and on its acceptance award the same to it.
25. At any rate, even if the part of the contract work was offered to the respondent No. 2 at the rate quoted by the petitioner for the whole of the contract work in view of its offer that it would accept the same at the rate offered by another contractor, which construction of its offer by the respondent No.2 has some force because the language used therein needs to be read distributively, in our view, the grievance in this regard could be made or the above objection about the validity of the offer made by the respondent No. 2 could be raised not by the petitioner, but by some other tenderer who did not get the part of the work under the contract. It was open to them to say that they had no opportunity to give their offer in respect of the part of the contract work or that they were also ready to accept part of the contract work at the rate offered by the petitioner. It is a different case that the above objection could have been turned down on the ground that the next lowest tenderer has been given such an offer which he had accepted and, therefore, there is no question of making such offer to
the other tenderers which action of the Board as hereinbefore shown would be perfectly consistent with the mandate of Art. 14 of the Constitution . Be that as it may whether such course is adopted by the respondent No. 1 Board either on interpretation of the language of the offer made by the respondent No. 2 for part of the contract work or sharing of the contract work in the manner canvassed by the respondent No. 2 or otherwise because it was the lowest tenderer next to the petitioner once the power is conceded to the Board to divide the contract and once the petitioner is awarded part of the contract at the rate quoted by it and it has accepted the same, its girevance about discrimination cannot survive particularly when the remaining part of the work is awarded to the respondent No. 2 at the same rate.
26. In the result, the instant writ petition fails and is dismissed. The interim order shall stand vacated. No costs.
27. The learned counsel for the petitioner has at this stage submitted before us that the interim order passed by us in this petition should continue for four weeks to enable the petitioner to move the Supreme Court and obtain appropriate interim orders from the said Court. In our view, we cannot accept the above request of the petitioner because there is urgency in the contract work to be carried out. In fact, there is no equity in favour of the petitioner who has accepted the part of the contract work as per the agreement for that purpose and is carrying out that work. In the circumstances, the prayer for continuance of the interim order for four weeks is rejected.
28. Petition dismissed.