D.D. SINHA, J. : - Heard Shri S.P. Dharmadhikari, learned counsel for the petitioner, Shri A. B. Choudhari, learned Government Pleader for respondent Nos. I to 3 and Shri Atul Pande, learned counsel for respondent No.4, Rule. Rule made returnable forthwith by consent of the parties.

2. Shri S. P. Dharmadhikari, learned counsel for the petitioner has submitted that the petitioner is proprietary firm and is engaged in construction of roads since last five years. The petitioner has satisfactorily executed contracts of construction of road, not only with respondent but with other departments of the local bodies, such as Zilla Pari shad, Yavatmal as well as Municipal Council, Yavatmal.

3. On 20 -12 -2005 a tender notice was published by respondent No.2 by which sealed tenders for work of providing B.T. Renewal to Nagpur Bori Tuljapur Road, MSH No.3 in Km.180/00 to 184/00 Km.187/00 to 191/00, Km.199/00 to 203/99 and Pitching and construction of Gabian and Protection Wall with repairs to approaches in Km.I92/00, 204/800 to 205/400 and 212/150 and 214/950.

4. The learned counsel for the petltlOner has contended that as per condition of tender the petitioner is required to submit two envelopes and as per condition No. 1.3.1. "Envelope No.1" shall contain documents mentioned in sub -clause (i) to (xiv). It is mentioned in condition No. 1.3.1 that if any information/ document is not submitted, as required, Envelope No. 2 of such tenderer will not be opened. Shri Dharmadhikari, learned counsel contended that the tenderer has to submit Envelope No.2 as per condition No. 1.3.2. On 20 -2 2003 respondent No. 1 opened Envelope No. 1 of all tenderers including t petitioner and though Envelope No. 2 of the other tenderers, including respondent No.4, was opened, Envelope No.2 of the petitioner was not open by respondent on the ground that it did not fulfil additional condition No. 1 which pertains to Hot Mix Hot Waive work, since Hot Mix Plant owned by the petitioner was not located within the radius of 60 kms. from the site of work on the date of submission of the tender.

S. Shri Dharmadhikari, learned counsel for the petitioner has contended that the reason given by the department for not opening Envelope No.2 of the petitioner is misconceived and cannot be sustained in view of tender Condition No; 1.3.1. (vii). It is contended that additional condition No. 1 as well as condition No. 1.3.1. are essential eligibility conditions and failure to fulfil any one of them results in rejection of the tender document. It is submitted that both these conditions are applicable to the work under tender irrespective of the fact that as to whether the work under tender is less or more than Rs. 50 Lakhs. It is contended that both these essential eligibility conditions are inconsistent with each other and therefore, non -fulfilment of condition No. 1 does not result in rejection of tender in view of Condition No. 1.3.1 (vii).

6. Shri Dharmadhikari learned counsel for the petitioner further submitted that as per Clause (vii) of Condition No. 1.3.1 the tenderer is required to submit Form No. 1 and is also required to furnish information mentioned therein. In Form No.1, Clause A requires the tenderer to furnish information as to whether Hot Mix Plant as per MOST 2000 is owned by the tenderer and is available for immediate deployment on the work site. Clause B stipulates that if answer to question No. 1 is "No", then the tenderer is required to state how the said machine will be procured by the contractor/tenderer, by : - (a) Taking on hire from another company, or (b) will Purchase from the manufacturer.

Similarly, as per clause C of Form No.1 if the answer to question Nos. a and b is "No", in such situation, the tenderer is required to give details how machinery will be made available for use on work in question.

7. Shri Dharmadhinari, learned counsel for the petitioner further contended that as per condition No. 1.3.1 (vii) as well as inform