B.R. Gavai, J.

1. Rule. Rule made returnable forthwith. Heard by consent of the learned counsel appearing for the parties.

2. The petitioner has approached this Court being aggrieved by the rejection of its tender at the stage of qualifying to compete in the financial bid.

3. The facts in brief giving rise to the present writ petition are as under:-

The respondents/State had invited tender for construction of High Level Bridge at 171/600 on Kahani River MSH-11 Road from State Boarder to Gondia Goregaon Sadak Arjuni Gadchiroli Chamorshi Road in Taluka and District Gadchiroli. In response to the said tender, six bidders had submitted their bids. It is the case of the petitioner that though Envelope No. 1 was opened on 21.10.2014, the petitioner was not informed about the qualification or disqualification of the petitioner. It is the case of the petitioner that for the first time on 04.11.2014 he received a communication on E-mail informing it, that it was found to be disqualified, as it had not uploaded the scanned copy of the Registration of Firm from original. It is the case of the petitioner that immediately on the next day i.e. on 05.11.2014 it had addressed the representation to the authorities. In this background, the petitioner had approached this Court praying for declaration that the petitioner is eligible to participate in the aforesaid tender and for further direction to the respondents to open the financial bid of the petitioner. The petitioner had also prayed for an interim protection.

4. The petition had come up before us for admission on 11.11.2014. On the said date, we had issued notice to the respondents and also granted ad-interim order directing the parties to maintain status quo as on the said date. On the said date itself, it was informed by the learned Government Pleader that the tender was already allotted to the lowest bidder on 04.11.2014 itself. Accordingly on the oral motion by the petitioner, respondent no. 5 was permitted to be impleaded as party respondent. The respondents have filed elaborate replies so also the petitioner has filed rejoinder.

5. It is the basic contention of the petitioner that the petitioner's tender was rejected on hypertechnical ground. It is the case of the petitioner that the condition on which the petitioner's tender was rejected, cannot be said to be an essential condition. The learned counsel in that respect relies on the judgments of the Apex Court in the case of M/s. G.J. Fernandez. vs. State of Karnataka and others reported in AIR 1990 Supreme Court 958; Rashmi Metaliks Ltd. and another. vs. Kolkata Metropolitan Development Authority & ors. reported in 2013 (11) SCALE; Poddar Steel Corporation. vs. Ganesh Engineering Works and ors. reported in (1991) 3 Supreme Court Cases 273 and on the judgment of the Division Bench of this Court in the case of Agrawal Roadlines Pvt. Ltd. vs. Indian Oil Corporation Ltd. and ors. reported in 2003 (1) Mh.L.J. 610.

6. It is further contended by Mr. Naik, learned counsel appearing on behalf of the petitioner that the petitioner was in fact held to be qualified on 21.10.2014 when the envelopes were opened. However, the record has been manipulated so as to suit respondent no. 5. It is submitted that the communication informing the petitioner, that it is disqualified is sent on E-mail on 04.11.2014 i.e. the date on which respondent no. 5 was awarded the contract. He further submits that the entire manner in which the tender is allowed to respondent no. 5 shows that the authorities had made up their mind to award the contract to respondent no. 5. It is submitted that on 05.11.2014 itself the Assistant Chief Engineer informs the Executive Engineer that an approval has been granted for accepting the tender of respondent no. 5. On the same date the Executive Engineer informs respondent no. 5 that its tender has been accepted and it should deposit an amount of Rs. 16,25,000/- towards E.M.D. It is submitted that surprisingly on the same date, the