- (1.) UMESHWAR Pandey, J. The petitioners, who happen to be partners of a firm known as M/s. Brijwasi Keshav Milk Product, had submitted their tenders for the year 2003 after completing all the formalities for undertaking the contract for sale of 'petha', 'pera' and 'dalmot' at Mathura Junction Railway Station. The tender was floated by respondent No. 1- Indian Railway Catering and Tourism Corporation Ltd. (for short I. R. C. T. C.) through publication in newspaper. The respondent No. 4, proprietor of M/s. Kwality Petha House, had also submitted his tender for the said contract. The licence fee was fixed at Rs. 22. 50 lacs per annum and as pleaded in para- 15 of the Petition, Clause 5. 1 of the tender form the licence was awardable to the party quoting the highest concession fee which would be over and above the licence fee. The petitioners offered a sum of Rs. 11,50,000/- by way of concession fee in their tender whereas the respondent No. 4, as admitted in para 20 of the Writ Petition, offered Rs. 38,50,000/- for the said purpose. The tenders were opened on 6-1-2004 and vide para-24 of the Writ Petition, it was awarded in favour of the respondent No. 4 though he did not possess the requisite experience of 10 years for manufacture and sale of 'pera' and vide para-26 of the Writ Petition, the petitioners contended that respondent No. 4 failed to deposit the licence fee or concession fee within a period of 7 days. On account of lack of experience, as required in the advertisement of tender dated 10-10-2003, and also on account of failure of respondent No. 4 to deposit the first instalment of licence fee and concession fee within a period of 7 days from the date of issue of letter of award of licence he forfeited his right to obtain the contract. In spite of all these illegalities, as contended by the petitioners, the I. R. C. T. C. granted the contract in favour of the respondent No. 4. The petitioners have, thus, prayed for issue of writ in the nature of mandamus restraining the respondent No. 4 from working as such licensee at Mathura Junction Railway Station and also for issue of writ in the nature of mandamus commanding the respondent Nos. 1 & 2 to award this licence in their favour. They have further prayed that since they were continuing for the work of sale of 'petha' and 'pera' at Mathura Junction Railway Station by virtue of their licence for the year 2002, they should not be asked to discontinue and remove their total establishment from the Railway Station premises.
(2.) IN response to the advance notice of the Writ Petition to the respondents, they have put in appearance and in opposition to the Writ Petition respondent No. 1 has filed the counter affidavit and respondent No. 4 represented through his Advocate Shri Ranjeet Saxena has also filed his counter affidavit. The respondent No. 1 contends in para-10 of the counter affidavit that the tender of respondent No. 4 was accepted on account of having quoted the highest concession fee of Rs. 38,00,000/- and offer of award of licence was made to him vide letter dated 6-l-2004. He was asked to convey the acceptance of offer and deposit the required amount within the stipulated period (12-1- 2004) and start operation of sale from 17-1-2004. On 9-1-2004, the respondent No. 4 through his letter of the date represented that he was ready to complete the tender conditions and also made a request for one week's extension for payment of concession fee/licence fee. The Competent Authority granted one week's time to the respondent No. 4 vide letter dated 9-1-2004 itself and the required amount was deposited by the respondent No. 4 vide two demand drafts dated 14-1-2004. Accordingly, he was awarded licence and necessary permission was given to him to start the business. As the licence of the petitioner was expiring on 16-1-2004 they were advised to take away their entire establishment and vacate the Railway Station premises. It is further contended in para-13 of the counter affidavit that the respondent No. 4 possesses all requisite qualification, as mentioned in the documents. The tenders were opened in presence of the parties and the licence was awarded on the basis of offers received in the tenders. Vide para-17 of the counter affidavit, it is contended that the Competent Authority has jurisdiction to extend time for payment to successful bidder and in the present case the time was granted to the respondent No. 4 on the merits of his case which was fully justified legally as well as factually. At the time of opening of the tenders in the presence of the parties, no objection was raised by the petitioners or any of the parties biding in the tender for challenging the award of contract offered to respondent No. 4. The respondent No. 1 further contends that it was after the perusal of the entire documents submitted by the parties alongwith their expressions of interest for the contract, that the offerers were short listed for participation in the financial bid. The respondent No. 4 was found as an eligible applicant and there is no illegality or arbitrariness in accepting the offer of respondent No. 4 for the grant of disputed licence in his favour. The respondent No. 4 possesses all experience as required of the parties giving their offer in response to the tender advertisement. The respondent No. 1 has further contended in para- 27 of the counter affidavit that the respondent No. 4 had made his request for extension of time to deposit the first instalment of the licence fee and concession fee well within 7 days from the date of offer made to him and the Competent Authority while acting within its jurisdiction granted 7 days time and thereafter the instalment was deposited well within the extended period i. e. on 14-1-2004. The respondent No. 1 has filed a Supplementary counter-affidavit and vide para-3 of the same it has been clarified that the experience of the offerers for the sale of the items, as mentioned in the tender documents, was not to the effect that he should have experience of 10 years for the manufacture and sale of all the items. The experience of one item is enough to fulfill the eligibility conditions. The respondent No. 4 in his counter affidavit has also reiterated all those facts which have been stated in the counter affidavit of respondent No. 1 and has contended that all the conditions of the tender have been fulfilled by him. Thereafter offer of contract was made to him on the basis of his being the highest bidder in respect of the concession fee from amongst the tenders. He has further contended that he has long experience for the sale of 'petha' and is running his reputed Kwality Petha House at Agra for the last several decades.
(3.) THE petitioners in reply to the aforesaid counter affidavits of respondent No. 1 and respondent No. 4, have also filed their rejoinder affidavits. We have heard Shri Ravi Kant, Senior Advocate, assisted by Sri Manoj Kumar Pandey appearing for the petitioners and we have also heard Sri U. N. Sharma representing respondent Nos. 1, 2 & 3 and Shri Ranjeet Saxena appearing for respondent No. 4.;