JUDGMENT - N.P. CHAPALGAONKAR J.:---The Marathwada University, a statutory University, which is represented by the Respondents Nos. 1 and 2 before us, having a seat at Aurangabad, published a short tender notice in daily "Lokmat" on 4th August, 1989, calling for the sealed B-1 tenders from the registered and un-registered contractors for the construction of Environmental Science Department building. The estimated cost of he work was Rs. 7,02,000/- and the renders were to be submitted before 2.30 p.m. upto 19th August, 1989. The earnest money of Rs. 7,100/- was to be deposited. After the tenders were opened, the University took a decision to allot the work to Respondent No. 3 M/s. Sanjeev Construction Company, Aurangabad. It is the case of the petitioner who had also submitted a tender that his render should have been accepted being the lowest and also for the reason that he had complied the necessary requirement of the tender, whereas the tender of the Respondent No. 3 was not a legal one. Therefore, the petitioner has moved this Court in its extra ordinary jurisdiction with the prayer that the order of allotment of work to the Respondent No. 3 be quashed and for a direction that petitioner's tender be accepted.

2. Challenge of the petitioner to the acceptance the tender of the respondent No. 3 by the University is mainly on two grounds. Firstly, the petitioner contends that since the tender notice published in daily "Lokmat" on 4th August, 1989, invites sealed tenders, the tenders which were not sealed cannot be considered at all Whereas the petitioner's tender was sealed one, the tender of the Respondent No. 3 was not sealed. The second ground of attack is that the petitioner's tender was the lowest and his offer was 7.49% below the D.S.R. rates and the offer of the Respondent No. 3 was the second lowest which was above 0.06% the D.S.R. rates. We are told at the Bar that the difference between the two offers in terms of the money would be to the tune of Rs. 54,000/- approximately and, therefore, the Respondent University should not have accepted the tender of the Respondent No. 3 in preference to the petitioner's tender which was the lowest one. Shri. A.D. Khillare, the learned Counsel appearing on behalf of the petitioner, submitted that the University has no authority to by-pass the requirement of sealed tender and open tenders which were just pested and not sealed and also it has no discretion to prefer the tender of the respondent No. 3 which was quoting higher rates for the execution of the work than the petitioner had offered and that too for no valid reason. Shri Khillare submitted that on both these counts, the University authorities have acted arbitrarily and the University being an instrumentality of the State does not have a right of act arbitrarily in the matters of contract.

3. In support of his submission, Shri Khillere relied on the judgments of the Supreme Court in (Ramanna Shetty's case)1, A.I.R. 1979 S.C. 1628 and (Harmindersing Arora v. Union of India)2, reported in A.I.R. 1986 S.C. 1 27. Shri Khillare further submitted that sealing of the tender gives sanctity of the tender and prevents letting others know before opening of the tender the rates quoted by the tenders. This is one of the essentials in the process of selecting the contractor by calling the tender and, therefore, the term requiring that the tender should be sealed one is mandatory in nature. Shri V.B. Ghatge, the learned Counsel appearing on behalf of the respondents Nos. 1 and 2, submitted that the requirement of the tenders being sealed white they are presented to the University office was not mandatory in character and even assuming that it was mandatory, the pesting of the envelope which contains a tender form by gum or any other adhesive material would be the sufficient compliance of the term and even those envelopes will have to be taken to be sealed envelopes since the term "sealed" does not necessarily connote only sealed by wax and p

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