Shrikant D. Kulkarni,J. - (1.) Rule. Rule made returnable forthwit h. Heard finally at admission stage with the consent of both the sides.
(2.) The factual matrix is as under: 2(i) The petitioner / M/s. Tirupati Construction, Latur is a propitiatory firm engaged in construction work. Respondent No.2/ Chief Executive Officer, Zilla Parishad, Latur had issued E-tender notice inviting tenders from the eligible contractors for construction of balance work of primary health centre, Wadwa, Tq. Chakur, Dist. Latur. The petitioner has filled in E-tender along with earnest amount of Rs. 2,14,920/- and tender fees of Rs.10,000/-. The petitioner has quoted an amount of Rs. 1,97,74,761.65 Ps. The Respondent No.5 has also filled in E-tender for the same work and quoted an amount of Rs. 2,10,81,473.43 Ps. On 17.04.2020, technical bids were opened by respondent Nos. 3 and 4, and four tenders were qualified for commercial/financial bids. On same day, i.e. on 17.04.2020, the commercial/finance bids were opened and tender of the petitioner being lowest one was accepted. Whereas, remaining three tenders were rejected. As per the terms and conditions of E-tender notice, the petitioner has deposited an amount of Rs.2,15,000/- with respondent No.4 by Demand Draft towards additional performance security deposit and the same has been accepted and encashed by respondent No.4 on 27.04.2020. On 04.08.2020, the petitioner submitted an application to respondent No.4 and requested to issue work order so as to start tender work. On 01.09.2020, though the tender of the petitioner was accepted, all of sudden, respondent No.4 without communicating any thing to the petitioner, issued work order in favour of respondent No.5. 2(ii) According to the petitioner, due to pandemic situation of Covid-19, there was complete lock down in the Latur city in the month of April, 2020. There were restrictions on travelling. During the lock down period, the working hours of the Banks were also reduced. According to the petitioner, there were Saturdays and Sundays on 18th, 19th, 25th and 26th April. Due to lock down and restrictions imposed on travelling, he could not get Demand Draft of the amount of additional performance security deposit. He could not deposit the amount in the office of Respondent No.4. He could manage to get the Demand Draft and submit the same in the office of respondent No.4 on 27.04.2020 and it came to be accepted and encashed by respondent No.4. 2(iii) The petitioner being lowest bidder, his tender was accepted by respondent Nos. 2 to 4 and thereby petitioner gets legal right to receive the work order. He has also made huge investment for carrying out the tender work. According to the petitioner, respondent No.4 illegally, arbitrarily and by colourable exercise of powers has issued the work order dated 01.09.2020 in favour of respondent No.5 without making any communication with the petitioner. According to the petitioner, the action of respondent No.4 in issuing impugned work order dated 01.09.2020 in favour of respondent No.5 is in breach of principles of natural justice. No opportunity of being heard and/or any notice ever given to the petitioner. It is alleged that respondent No.4 is in conclusion with respondent No.5. The respondent No.4 by misusing his powers issued work order in favour of respondent No.5 who is politically motivated person. 2(iv) By invoking writ jurisdiction under Article 226 of the Constitution of India, the petitioner has challenged the work order dated 01.09.2020 issued by respondent No.4 in favour of respondent No.5 pursuant to E-tender notice and prayed to quash and set aside the same with another prayer to issue work order in his favour by issuing writ of mandamus or any other appropriate writ. 2(v) Respondent Nos. 2 to 4 have filed reply and denied the allegations made by the petitioner. It is the stand of respondent Nos. 2 to 4 that as per the tender condition No.15, the petitioner was under obligation to deposit additional performance security deposit within a span of eight days from 07.04.2020. The Government Resolution dated 26.11.2018, is very much clear regarding not relaxing period of eight days. According to the respondents, the petitioner's commercial/financial bid was opened on 17.04.2020. The petitioner was required to deposit additional performance security deposit on or before 25.04.2020 i.e. within eight days. The petitioner has failed to deposit the same in view of tender condition and as per Government Resolution dated 26.11.2018. In that background, the respondents had called second lowest bidder i.e. respondent No.5 to deposit additional performance security deposit. The intimation was given about the same to respondent No.5 on 12.08.2020 and called upon his willingness whether he is ready to work below the price quoted by the petitioner. Respondent No.5 / Ms/ Lalit Builders shown its willingness to go up to -8.45% of the tender price i.e. lower than the petitioner's quoted price. Respondent No.5 deposited additional performance security deposit on 12.08.2020 itself. Therefore, the work order was issued on 01.09.2020 in favour of Respondent No.5 who has started the work mentioned in the tender immediately and 30-40% work is already made. 2(vi) According to respondent Nos. 2 to 4, the petitioner has quoted -7.99% of the tender price, whereas respondent No.5 has quoted -8.45% of the tender price and in that background, letter dated 11.08.2020 came to be issued to respondent No.5. Respondent No.5 shown his willingness to complete the work along with Demand Draft toward additional performance security deposit and thereafter work order came to be issued on 01.09.2020 in favour of Respondent No.5. 2(vii) It is the stand of respondent Nos. 2 to 4 that the petitioner had deposited additional performance security deposit with Demand Draft dated 27.04.2020 with application dated 27.04.2020 after the laps of period of eight days and the said Demand Draft is not encashed by the Department. The petitioner did not turn up to collect the Demand Draft, and as such, it is lying with the office of Respondent No.4. According to respondent Nos. 2 to 4, Respondent No.5 has been selected as per the Government policy and there is no illegality, irregularity or favoritism to anybody. No case is made out for judicial review. 2(viii) Respondent No.5/ M/s. Lalit Builders has also filed its reply and pleaded that the tender was opened on 17.04.2020 and the petitioner being lowest one, his tender came to be accepted on 17.04.2020. It was obligatory on the part of the petitioner to submit additional performance security deposit within eight days from the date of opening of the tender i.e. from 17.04.2020 to 25.04.2020. The petitioner has submitted the Demand Draft of additional performance security deposit on 27.04.2020 after lapse of period of eight days. Respondent No.4 / Executive Engineer by letter addressed to respondent No.5 asked his willingness and accordingly respondent No.5 shown his willingness and readiness to work at lowest rate comparatively from the amount quoted by the petitioner. Respondent No.5 has deposited the Demand Draft with letter dated 12.08.2020. Respondent No.4 has issued the work order to respondent No.5 / M/s. Lalit Builders on 01.09.2020. Accordingly, respondent No.5 has started his work and the same is in progress.
(3.) Heard Mr. N.P. Patil Jamalpurkar, learned counsel for the petitioner, Mr. K.N. Lokhande, learned A.G.P. for respondent No.1, Mr. U.B. Bondar, learned counsel for respondent Nos. 2 to 4 and Mr. A.S. Shivpuje, learned counsel for respondent No.5. Perused the documents and papers placed on record by both the sides.;