JUDGMENT :

A.Y. KOGJE, J.

1. Rule returnable forthwith. Learned advocate Mr. Dipen Desai waives service or rule on behalf of respondent No.1. Learned advocate Mr. D.A.Sankhesara waives service of rule on behalf of respondent No.2. considering the nature of Dispute involved, and at the request of learned advocates for the parties, the matter is taken up for final hearing.

2. This petition under Article 226 of the Constitution of India is filed praying interalia for directions to the respondent- Agriculture Produce Market Committee for awarding the petitioner the work of construction of Sub-yard market at village Brahmanwada under the Agriculture Produce Market Committee, Unjha contending that the petitioner is the lowest bidder.

3. Learned advocate for the petitioner has raised two contentions, firstly that the respondents have flouted the procedure which is required to be followed as per the guidelines of Central Vigilance Commission by calling all the bidders for negotiation after the price bid. The second contention is that the respondent-APMC has shown favoritism by allotting tender and though the respondent No.2 was L6, still the tender was offered to respondent No.2.

4. In support of this contention, learned advocate for the petitioner has argued that the petitioner had participated in the tender process, where the offer of the petitioner was Rs.78,14,28,670.97/- against which the offer of respondent No.2 was Rs.81,51,61,809.21/-. The petitioner being L1 as per the office order No.68/10/05 of the Central Vigilance Commission dated 25.10.2005, the negotiation was to be held only with the petitioner, who is L1. Instead, the respondent No.1 on 10.06.2024 called all the bidders to participate in the negotiation. It is submitted that during the course of negotiation, respondent No.2 made an offer of Rs.68,94,00,000/- (Rupees Sixty Eight Crore Ninety Four Thousand), whereas, the petitioner made an offer of Rs.68,51,00,000/- (Rupees Sixty Eight Crore Fifty One Lacs).

4.1 He drew attention of this Court to Annexure-D which is a E-mail sent by the petitioner on the very day of negotiation. Despite this, offer made which is the much lower than respondent No.2, the work order has been allotted to respondent No.2. It is submitted that as against an offer of Rs.68,51,00,000/- of the petitioner, the work allotted was for Rs.68,94,00,000/- and therefore, the Respondents will have to pay Rs.4,50,00,000/- more to the respondent and therefore, the illegality committed by the respondent No.1 is against the interest of the respondent-APMC.

4.2 With regard to the favoritism alleged, it is submitted that in the previous contract also, where the petitioner was one of the bidders. There also, the petitioner was L1 still the respondent No.1 had issued the work order to respondent No.2. Moreover, in the meeting of the committee of respondent No.1, several members had raised an objection to allot the tender to respondent No.2, despite this at the insistence of the Chairman, the respondent-market committee proceeded to grant tender in favour of respondent No.2.

4.3 Learned advocate has thereafter, argued that the action on the part of the respondent-APMC is violative of principles of natural justice as the respondents were required to inform reasons to the petitioner for not accepting his offer as L1. It is also submitted that the action on the part of the respondents in calling for the negotiation after opening of the price bid, has affected the transparency in the process as the entire object of competitiveness is frustrated, as even after the opening of price bid, when the price bid was known to all the bidders, negotiation was undertaken and respondent no. 2 was allowed the work.

4.4 Learned advocate for the petitioner has relied upon the decision of the Apex Court in case of New Horizons Limited and Another v/s./ Union of India, reported in, (1995) 1 SCC 478, particularly on para-17 and contended that in the matter of contract, the State does not stand