The subsequent deviation after the tender process would not be permissible, and the disqualification of the petitioner was not justified.

Alpesh Y. Kogje, J.

1. Rule. Learned advocate Shri Gandhi waives service of notice of Rule on behalf of respondent Nos. 1 and 2. By consent Rule is fixed forthwith.

2. The present petition under Article 226 of the Constitution of India is filed for the following reliefs:

(A) be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside the disqualification of the petitioners at Annexure-A to this petition with allowing the petitioners to participate for bidding into the E-tender at Annexure-E to the present petition, in the interest of justice;

(B) Pending admission and final disposal of this petition, Your Lordships will be pleased to stay further execution, operation and implementation of the disqualification at Annexure-A passed by respondent authorities dated 29.02.2016 and the process of E-tender at Annexure-E dated 19.01.2016 to the present petition, in the interest of justice;

(C) Your Lordships will be pleased to direct the respondent No. 1 to refund the EMD amount as per letter at Annexure-G to the present petition, in the interest of justice;

3. The bare facts necessary for disposal of this petition are as under;

3.1 The petitioners had responded to the tender floated by the respondent Nagarpalika for the purpose of electrical installation of LED light under the Model Town Project of Vyara Nagarpalika. The E-tender Notice is dated 09.07.2015 and in response to this notice 10 bidders have submitted their bid with EMD of Rs. 79,350/-.

3.2 It is the case of the petitioners that after the tender process, the Nagarpalika had communicated to him that particular product, which was offered by him, was not of the specification specified by the technical consultant and for that reason he was called upon to give the explanation or willingness to supply the product as opined by the technical expert. As the petitioner was not willing to change the product item of another Company, it appears that the offer of the petitioner failed. Thereafter for the same product another tender was floated on 19.01.2016, wherein also the petitioner bidded alongwith 9 other bidders. However, in the 2nd tender, the items to be supplied were restricted as per the suggestions of the technical expert to the product of three Companies.

3.3 The case of the petitioners is that in the 2nd tender process, the petitioners is not permitted to participate and his EMD is also not returned. It is with this prayer that petitioners have approached this Court.

4. Learned advocate for the petitioner took us to the tender documents wherein the products were specified and the name of 7 Companies' products, which could be supplied, were also specified. The Company, which the petitioner had shown willingness to supply, was also one of the Companies whose name was enlisted in the tender document. It is, therefore, submitted that after the tender process the change contemplated and restricting the product of 3 Companies, of course on the advise of a technical expert, would still amount to the change in essential condition of tender and therefore, the petitioner ought not to be penalized for his inability to supply the restricted items, whereas he has always been willing to supply the items of the Companies which were listed in the 1st tender document.

5. In support of his contention, learned advocate for the petitioners has relied upon a judgment reported in 2003 (2) GLR 956 in case of Elecon Engineering Co. Ltd. & Anr. Vs. Gujarat Mineral Development Corporation Ltd. & Anr., and relying upon paragraph No. 8, he submitted that the subsequent deviation after the tender process would not be permissible.

6. In response to the notice issued by this Court, the Nagarpalika has filed its reply through the in-charge Chief Officer, wherein it is contended that for this very project the respondent Nagarpalika had earlier floated E-tender for installation of LED street light with specification. H