F.I. Rebello, J.
1. Rule heard forthwith.
2. The petitioner had submitted his tender pursuant to tender notice dated 7th March, 2005. One other tenderer was respondent No. 5, who had applied as proprietor of Samsal Telecom. One of the conditions of the tender was Clause 3(v), which reads as under:
'5(v) Contractor/company should submit a certificate of registration from competent authority. Contractor/company should submit necessary document/certificates satisfying above conditions duly attested by the Gazetted office at the time of purchasing of tender. No tender will be issued otherwise.'
The tender booklet under the head instructions for the tenderer under item No. 6 provided as under:'6 Dealer Possession Licence:- Tender should have a valid dealer Possession License (DPL) for minimum of 100 sets.'
3. It is the case of the petitioner that the he has been doing the work of maintenance which is the subject matter of the present tender since June, 2001 for the respondent authorities. He has manufactured equipments and supplied them to MELTRON which have been installed by the respondent authorities. The present tender has been invited for maintenance of those equipments. The petitioner was entrusted initially the work for a period of one year and thereafter by communication dated 16th July, 2002, 15th July, 2003 and 23rd December, 2003 the period of work was extended up to 3rd March, 2004. Similarly, he was given work for Chandrapur Division for one quarter and for Buldana Division the work for maintenance from 1st April, 2005 to 31st June, 2005 (30th June, 2005). The respondents had invited tender on 21st July, 2004 for the work of annual maintenance and repairs to wireless set equipments. Amongst the tender conditions there was a clause, which required submission of a certificate of registration from competent authority. In the instructions given for the tenderers, a requirement was placed that the tenderer should have a valid Dealer Possession License (D.P.L.). The petitioner by representation of 31st August, 2004 brought to the notice of the Chief Engineer that the work of maintenance requires a licence under the Indian Telegraph Act which permits the establishment, maintenance and work, issued by the wireless advisor to the Government of India and is issued only to a technically sound person. The petitioner is in possession of the said license which was renewed upto June, 2005. The license authorised him to maintain all equipments essential for wireless apparatus etc.
On the contrary the DPL License only permits the possession of equipment and it does not empower the person concerned to operate the wireless equipments. The petitioner had also represented against the action of the respondent authorities in refusing to open the price bid of the petitioner on 31st August, 2004 in respect of the tender issued in July, 2004. After the representation, the petitioner received no communication till 3rd March, 2005 when the petitioner was informed that the tender itself issued on 5th July, 2004 had been cancelled. It is submitted on behalf of the petitioner that it is obvious that it was so done as the petitioners representation in respect of the validity of the license had been accepted by the respondent authorities and the tender came to be cancelled.
4. After the cancellation of the tender by the authorities, a fresh tender notice was issued and published in the newspaper on 7th March, 2005. In the tender notice it was only required that the contractor should submit a certificate of registration from the competent authority and there was no term in the tender notice published in the newspaper that the contractor should have the DPL. However, in the tender booklet in Clause 6 there was a requirement of Dealer Possession License. The petitioner by abundant caution had obtained the consent of one Shri J.B. Agwan of M/s. Jayesh Enterprises, who holds DPL License and who consented that he would work with the petitioner for the maintenance. It is set out, that this was done as the respondent No. 5 also does not hold a D.P.L., in his own name and has been permitted to use a D.P.L, which stands in the name of the wife of the respondent No. 5 It is the case of the petitioner that after his representation he was hoping that the respondent authorities would do away with the requirement of DPL and would insist on the requirement of maintenance license. The respondent authorities had informed that the qualification bid would be opened on 11th April, 2005. The respondents had received 3 tenders on 11th April, 2005. The envelopes were not opened on the said dates and the participants were called on 12th April, 2005. On that date also the envelops were not opened and the same was postponed to 13th April, 2005. When the tenders were opened, it is the case of the petitioner that it was revealed that the respondent No. 5 did not have the license in his name and has submitted the license which was issued in the name of his wife. The petitioner duly objected to the same and was asked to submit the same in writing, he did so. On 16th April, 2005 according to the petitioner to his shock and surprise he received the communication, that the petitioner was not found qualified for the tender and his price bid cannot be considered. When he approached the office of the respondent authorities in the office of the executive engineer, he found that there was a mad rush and haste to hand over the work to the respondent No. 5 and all rules were being bent in order to favour the respondent No. 5. The respondent authorities ignored the objections raised by the petitioner, but went out of way to see that the work order could be handed over to the respondent No. 5 on 16th April, 2005 itself.
5. It is the case of the petitioner that the respondent authorities, in disqualifying and refusing to open the petitioners price bid for annual maintenance and repairs of wireless equipments and power supply is to show favouritism to respondent No. 5 who has political affiliation. The entire act of the respondent authorities is to frustrate the legitimate expectation of the petitioner and infringes the Wednesbury's principle. The respondent No. 3, it is set out, has ignored the requirement of fairness and openness in the matter of tender and there is no rhyme or reason in rejecting the tender of the petitioner, inspite of the petitioner holding valid and necessary documents and has experience of doing the same work from 2001 with the respondent authorities. The petitioner is being denied the opportunity of maintaining the equipments installed by MELTRON. The third tenderer, it is set out, did not have the necessary documents, showing that he had minimum yearly turnover for maintenance jobs of MELTRON, made equipments for Rs. 20 lakhs during last three years. The bid of the petitioner, it is contended, is 41 per cent below the estimated rate than in the earlier tender and with whom the respondent No. 5 obviously cannot compete. Thus the respondent No. 3 is knowingly and intentionally causing loss to the public exchequer and the department. It is, therefore, submitted that the respondent authorities have indulged in rank favouritism, illegality, arbitrariness and it is on account of this that the petitioner is approaching this Court.
6. The petition was allowed to be amended and by the amendment it is sought to be contended that only the license issued under Section 4 of the Indian Telegraph Act is the appropriate license for carrying out the work for which the tender had been issued. The licence which is issued under the Indian Wireless Telegraphy Act is useful for the dealer for sale of apparatus and for receiving the apparatus which needs repairs. The said license does not empower the holder to carry out any repairs. The respondent authorities had not sought any opinion of the Government of India, Ministry of Communications regarding the validity of the license possessed by the petitioner. The communication sent by the respondent authorities dated 5th May, 2005 to respondent No. 6 does not authorize to give any opinion. It only demonstrates bias on the part of the respondent authorities, as it did not make any enquiry with regard to the license held by the petitioner. The opinion given by the respondent No. 6 on 6th May, 2005 it is set out, is contrary to the provisions of the Act. The opinion given is illegal and issued to favour the respondent No. 5 without any authority given by the Telecommunication department. The opinion given by respondent No. 6 ought not to be considered.
7. To the reply filed by the respondents, the petitioner has filed two additional affidavits. We may briefly advert to the same. It is the contention of the petitioner that the license possessed by him is the only license, which is made necessary under the Indian Telegraph Act, for maintaining the work of telegraph. The petitioner has produced a copy the said license. The license issued is styled as 'License in Establish Maintain and work in Experimental Wireless Telegraph Station in India'. It is the submission of the petitioner that the wireless sets/equipments come under the definition of Telegraph under the Indian Telegraph Act 1885, hereinafter referred to as the Telegraph Act. Placing reliance on Section 4 it is sought to be contended that the respondent No. 5 does not have the license which enabled him to submit his tender, as any work for maintenance would be contrary to the provisions of the Telegraph Act. It is further set out, that the holding of the Dealer Possession License under the Indian Wireless Telegraph Act 1933, hereinafter referred to as the Wireless Telegraph Act, is not at all necessary for carrying out maintenance work. It is only for the purpose of possession of a wireless telegram apparatus. In dealing with the affidavit filed by Shri S.H. Borkar, it is set out that the officer has gone out of his way to mislead the respondent department in respect of the license required. Dealing with the contention of respondent No. 5, it is contended that the license is not issued in the name of M/s. Samsal Telecom and it is in the name of the wife of the respondent No. 5.
In the affidavit filed on 24th May, 2005 it is pointed out that the petitioner's contract for maintenance came to an end in March, 2004 and inspite of that, extension was given to the petitioner till 31st July, 2004. Allegation of bias and favoritism are reiterated.
8. On behalf of the respondent Nos. 2, 3 and 4 a reply has been filed by Shri Shripad Madhukarrao Apte, Project Officer. It is set out that the respondent No. 2 had published notice for work of annual maintenance and repairs to the wireless units/equipments and power supply units installed at various stations of Wainganaga Basin. These wireless units sets/equipments are required for proper and immediate communication to tackle various situations which may arise due to shortage of water or excess of water in the reservoirs. In the tender notice there are two major conditions to quality. One is Dealer Possession License and another is yearly turn over of 20 Lakhs per year in three years. The petitioner did not fulfill the tender condition regarding dealer possession license and as such the same was not opened. The respondent has denied, that the condition of having D.P.L. was provided in order to favour the respondent No. 5 as absolutely incorrect and baseless. Its is pointed out that the authorities who deal with the issue has categorically informed that the dealer possession license is must and a compulsory document for undertaking repairs/maintenance of wireless equipment as per Indian Telegraph Act. It is pointed out, that the contention of the petitioner that his bid was 41 per cent below the estimated rate in the earlier tender had no relevance, considering the present subject matter and, therefore, allegation made needs no consideration. The respondent No. 5 has not issued work order at the time of filing the reply though it had selected respondent No. 5 for work of maintenance as the respondent No. 5 has complied with all the conditions of tender. It is pointed out that at the time of filing the reply there was acute water shortage in the entire Vidarbha Region and the respondent No. 3 is required to supply water at different places, as per requirement of the collectorate as well as other Government institutions on urgent basis and public at large and for that purpose proper communication and work is essential to monitor water supply. On account of acute water shortage at many places there are possibilities of a law and order situation.
9. On behalf of the respondent No. 5 a reply has been filed. The allegations by the petitioner have been denied as being without any basis and without furnishing particulars. Dealing with the aspect of malafides, it is pointed out that the Apex Court has held, that there must be specific pleading regarding malafides and mere use of expression as malafides under political pressure or corrupt practice is not enough details must be furnished and material facts have to be set out specifying the particular persons against whom the allegations are made so that such person may have an opportunity of controverting such allegations. In the absence of specific allegations and pleadings, it will not be open to this Court to make any observations with regard to malafides. It is then pointed out that the tender floated by the respondent is in respect of maintenance and repair of wireless sets and power supply units. The two documents are different. It is pointed out that the petitioner has supplied power supply unit and not wireless sets. No person can either manufacture or maintain a wireless set except with the permission granted by the competent authority under the relevant law. Reference is made to various requirement as set out in tender notice dated 21st July, 2004. the license filed by the petitioner, it is set out, is not valid for the submission of bid. The respondents set out that there are three types of licenses issued for possession and maintenance of wireless sets/equipments which are (1) License on demonstration of equipments (2) License for experimental wireless telegraph station (3) Dealer Possession License. The first two licenses are granted only for restricted purpose namely demonstration of equipment and operating experimental wireless telegraph station. The licence is for a very limited purposes. The Dealer Possession licence however is different. Under this licence, the licencee can at a time hold and repair a particular number of equipments. This licence is normally given for 50, 100 or more number of wireless sets. A licencee holding demonstration licence or experimental wireless telegraph station cannot hold such large number of wireless sets, nor are they authorized to repair them. A Dealer Possession Licence is issued under the provisions of Section 5 of the Indian Wireless Telegraph Act. The licencee has to maintain separate register in the prescribed form in respect of complete wireless sets coming in his possession and the sets received for repairs and the sets given for demonstration. The information has to be maintained for a period of 5 years. The licencee can also obtain demonstration licence experimental licence. This would show that the Dealer Possession Licence is different than the experimental licence. Section 3 of the Wireless Telegraphy Act prohibits possession of wireless telegraphy apparatus except under and in accordance with a licence issued under the Act. The conditions mentioned at item 6 of the instructions to the tenderer is in compliance with the statutory provisions and as such an essential condition for eligibility. The offer made by the petitioner was a non-responsive offer.
The respondent authorities were, therefore, right in treating the petitioner's offer as a non-responsive offer. In reply to paragraph 6 of the petition, it is set out that similar conditions were also there in the earlier tender document. The petitioner, it is submitted, could not have executed the work under the tender with the consent of third party as it will be contrary to law. Allegation that the respondent No. 5 does not hold a licence is denied. It is pointed out that the licence is granted to M/s. Samsal Telecom, which is the bidder in the present tender process. That application for Dealer Possession Licence by respondent No. 5, is pending with the police, for verification is denied. The licence was issued in the name of M/s. Samsal Telecom and the wife of the respondent No. 5 is the authorized person to maintain the register, etc., and her name is disclosed to the telecom authority. The allegation made in paragraph 10 had been denied as baseless and malicious. In answer to paragraph 13, it is specifically set out that there is no illegality or arbitrariness in the action of the respondents and the present petition is an outcome of caprice of the petitioner. It is set out that the process of tender is transparent. The petitioner having participated in the bid without any demur cannot allege malafides against the authorities for taking a decision in accordance with the stipulated conditions. In paragraph 17 the need for maintaining wireless sets is set out.
10. An additional affidavit was filed on 6th June, 2005 in answer to rejoinder filed by the petitioner on 25th May, 2006. It is pointed out that the work of sale or repair of the wireless units is entirely different than establishing and working of the telegraph instrument or apparatus. The various rules framed in exercise of the powers under Section 7 is set out in paragraph 3. These rules, it is pointed out are for establishing, maintaining and working of the wireless station or network. There is no provision for sale, repair or maintenance of a wireless set under these rules. It is again reiterated that the tender document required that the tenderer should possess Dealer Possession Licence for atleast 100 wireless sets. The petitioner did not challenge the said condition and participated in the process of tender without any demur. It is not open to the petitioner to challenge the tender process on the ground that such a condition is not necessary. The challenges now raised are afterthought.
11. The respondent No. 6 has also filed reply as the officer in-charge of International Monitoring Station for Chattisgarh and Vidarbha area on behalf of the Ministry of Communications, Information and Technology. The respondent No. 6 points out that allegations made against the said respondent are totally false, baseless and, therefore, denies the same. The respondent No. 6, it is set out is authorized person in relation to international monitoring station and competent to opine and as such, authorized to give opinion in relation to licence issued by Government of India. The plea of bias alleged by the petitioner has been denied. The respondent points out that the petitioner does not know the petitioner and has nothing to do with the petitioner. Merely because he has given his opinion by his communication dated 6th May, 2005 that cannot be the basis for allegation of bias. The Superintending Engineer and Administrator, CADA Nagpur had sought opinion about necessity of Dealer Possession Licence. Considering the provisions of law he had given his opinion. It is specifically set out that the petitioner cannot be allowed to work without Dealer Possession Licence. The opinion was given based on a request by the respondent No. 3. The respondent No. 3 in the letter had called on respondent No. 6 to give his opinion considering the objection raised by the petitioner, whether Dealer Possession Licence is essential document while doing the maintenance and repair job of wireless sets at different locations in Vidarbha region. In answer to that, a reply was sent on 6th May, 2005. The respondent No. 6 informed that Dealer Possession Licence issued by international monitoring station at Nagpur is valid to undertake the repair/maintenance job in the State of Maharashtra, Chattisgarh, Madhya Pradesh and Bihar only. It is renewed on yearly basis after details of information of sets sold and repaired by the respective Dealer Possession Licence holder is submitted to the office. It is then pointed out that the petitioner himself has applied for Dealer Possession Licence at Nagpur and the matter is pending for police verification. Based on this it is also set out, that the contention of the petitioner that Dealer Possession Licence is not required for maintenance is not correct. The petitioner has relied on several judgments, which would be adverted to, to the extent necessary.
12. At the outset if may be mentioned that the tender notice clearly requires that Dealer Possession Licence must be for minimum of 100 sets. The Dealer Possession Licence is issued under the provisions of the Indian Wireless Telegraphy Act 1933 and the Rules framed therein namely the Indian Wireless Telegraphy (Possession) Rules 1965, which hereinafter shall be known as Wireless Telegraphy Rules 1965. The tender document clearly required the Dealer Possession Licence. The petitioner has contended that the licence obtained by him which is styled as the Licence To Establish, Maintain and work in Experimental Wireless Telegraph Station in India has been issued under the provisions of the Indian Wireless Telegraph Act 1885 and is governed by the Indian Wireless Telegraphy (Experimental Service) Rules 1962. The licence which the petitioner has sought to rely upon is different than what was required in terms of the tender document. From the facts narrated earlier it is also clear that the petitioner sought to rely on the D.P.L. licence of another person and apart from that it has now come on record that the petitioner himself has applied for Dealer Possession Licence which is pending before the respondent No. 6 for police verification. It is in this background that the various submissions need to be considered.
13. From the above pleading, the issues which arise for consideration are:
(i) Whether the petitioner, who had submitted his tender without challenging the term in the tender requiring possession of Dealer Possession Licence on rejection of his tender form, can seek the extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India.
(ii) Whether, the possession of Dealer Possession Licence is not essential and it is sufficient for the bidder to have the licence to establish, maintain and work an experimental wireless telegraph station in India issued under the Indian Telegraph Act 1885?
(iii) Whether the tender form of respondent No. 5 has been illegally accepted, whether, he does not have Dealer Possession Licence and it is in the name of his wife.
(iv) Whether, the petitioner has made out a case of malafides warranting interference by this Court?
14. A person seeking the extra ordinary jurisdiction of this Court must show and/or disclose that he is qualified and has not acted in such a manner which will result in this Court refusing to exercise its extra ordinary jurisdiction. In the instant case, the petitioner was fully aware even when the earlier tender was floated that the respondent Nos. 1 to 3 had required Dealer Possession Licence. According to the petitioner he has made representations against that and according to him in his opinion the respondents accepted the representation. Even if that be so, the respondents had once again invited tender containing the same requirement. The petitioner chose not to challenge that condition as contained in the tender document. Instead the petitioner participated in the tender process and started making representations. The petitioner also sought to rely upon the licence issued to some other person in support of his tender process. The petitioner himself has applied for D.P.L. It is only after the petitioner was informed that his tender did not meet with the requirements of the terms of the tender has he chosen to approach this Court and raise the challenges which will be dealt with hereinafter. The respondents have set out the need for awarding the contract. Even if we were not to consider that aspect of the matter, the fact remains that the petitioner was aware of the condition, had participated in the bid knowing the condition and only after his bid was rejected has chosen to invoke the extra ordinary jurisdiction of this Court. We are afraid that we cannot allow the petitioner who contends that there is no requirement for a Dealer Possession Licence and/or that it was not relevant and has chosen to keep quite in the matter and instead participated in the bidding process by submitting his tender to invoke the extra-ordinary jurisdiction. Learned Counsel had sought to rely on the judgment in the case of Haridas Namdeorao Rawankar and Ors. v. Punjabrao Krishi Vidyapeeth and Ors. : (2005)107BOMLR911 to contend that he need not have challenged the term in the tender and merely because he has accepted, would not mean that this Court should not exercise its extra ordinary jurisdiction. The issue before the learned Bench of this Court was of an appointment to the post of Associate Professor in agriculture chemistry where the petitioner participated. The petitioner, therein, had objected to the selection process/interview by making representation before their rejection. On a contention raised that the petitioner had acquiesced by participating, the contention was rejected on the ground that the selection/interview was bad as it suffered from glaring illegality. In other words, even if the petitioner had participated in the manner of public employment that would not prevent him from challenging the selection of another which was made expressly against the mandatory rules. That judgment would be of no assistance to the petitioner. On this count alone this would not be a fit case to exercise the extra ordinary jurisdiction of this Court.
15. We may now deal with the second contention. We have firstly the opinion of the respondent No. 6, who has filed his affidavit. The respondent No. 6 has set out that the respondent No. 3 had sought his opinion in view of the objection raised by the petitioner herein as to whether Dealer Possession Licence is essential document while doing the maintenance and repairs job of wireless. In answer to that, he had given his opinion as he was entitled to do so. According to Shri Borkar, the officer incharge, the licence issued under Dealer Possession Licence is a must and compulsory requirement to undertake repairs/maintenance of wireless equipments. Apart from that, the question really is, whether the petitioner who did into possess the licence could really contend that the licence which the respondent No. 5 had, did not authorise him to carry out the repairs to a wireless telegraphy apparatus. As we have noted earlier there are two acts in the field. The Indian Telegraph Act makes it clear that within India, the Central Government shall have the exclusive privilege of establishing, maintaining and working telegraphs. The proviso, however, points out that it is open to the Central Government to grant licence to any person to establish, maintain or work a telegraph within any part of India. There is also a power to make rules for establishment, maintenance and working of a telegraph within any part of India. In exercise of these powers the Government has made rules which are known as The Indian Wireless Telegraphy (Experimental Service) Rules 1962. A perusal of this Rule would show that the 'Experimental Service', means a service utilising radio waves in experiments with a view to development of science or technique. Two kinds of licences are issued which are experimental wireless telegraphy station licence - radiating and experimental wireless telegraphy station licence non-radiating. What the petitioner has is the Experimental Wireless Telegraphy Station Licence-Non-Radiating. The licence which the petitioner has is for experimental services with a view to development of science or technique. The licence, therefore, is of a limited nature, Learned Counsel has sought to rely on the judgment of the Apex Court in the case of Delhi Science Forum and Ors. v. Union of India and Anr., : [1996]2SCR767 to contend that the licence issued to him pursuant to Rules made under Section 4 is the proper licence. We are afraid, that was not the issue which was before the Apex Court. The issue before the Apex Court was whether it was open to grant a licence pursuant to the power under Section 4 without Rules having being framed. The Apex Court held that the power to grant the licence under the proviso to Section 4 must be exercised reasonably, rationally and in public interest and in conformity with the condition which the Central Government prescribe to safeguard the interest of the public and the nation so long as the Rules are not framed under Section 7. The Apex Court noted that the distinction between the first proviso and second proviso is distinct and separate. This judgment would, therefore, be of no assistance to the petitioner to contend that the licence which he had is the proper licence.
We then have the Indian Wireless Telegraphy Act 1933 which sets out under Section 3, that no person shall possess wireless telegraphy apparatus except under and in accordance with a licence issued under this Act. Under Section 5 it is set out that the telegraph authority constituted under the Indian Telegraph Act 1885 shall be the authority competent to issue licenses to possess wireless telegraphy apparatus under this Act and may issue licence in such manner on such conditions and subject to such payment as may be prescribed. Section 10 confers power on the Government to make Rules. In exercise of this power the Central Government has made Rules known as the Indian Wireless Telegraphy (Possession) Rules 1965. Rules 15 provides for maintenance of Registers by a dealer which includes in form IV in respect of complete wireless sets received for repairs. Our attention was also invited to form II and instruction 2 which sets out that the licence issued under form II does not permit the establishment, maintenance and working of the apparatus, for which purpose a separate licence is necessary under the Indian Telegraph Act 1885. The wireless set issued in favour of the respondent No. 5 is in form II. The licence was initially issued pursuant to an application made on 28th January, 1988. The licence was first issued and thereafter has been renewed from time to time. Quantity as per the licence issued on 11th February, 2004 is for 150 sets. No other Rule has been shown to us which have been framed under the Indian Telegraph Act 1885, which requires a licence for repairs of either a wireless telegraphy apparatus or wireless transmitter as set out in Section 2 of the Indian Wireless Telegraphy Act 1933. In our opinion, therefore, the contention advanced on behalf of the petitioner that the licence issued to him is in fact the essential licence and that the licence issued in favour of the respondent No. 5 does not empower him to repair has to be rejected. We may also note that the petitioner himself has applied for the Dealer Possession Licence, which application is pending with the respondent No. 6 and apart from that he had sought to rely on a licence issued in favour of another while submitting his tender document.
16. On behalf of the petitioner, the learned Counsel has also sought to rely on the judgment in L.I.C. of India v. Consumer Education & Research Center and Ors., : AIR1995SC1811 to contend, that it was open to the petitioner to challenge an unreasonable term in the contract. Before the Apex Court the issue was, whether in a case of standard form contract or contract of adhesion, whether a term and condition if unreasonable, unfair or unjust could be subject to a challenge. The Apex Court after considering the fact observed that in the sphere of contractual relations the State and its instrumentalities are under an obligation and enjoined to act fairly, justly and equitably after taking into consideration the objective stand, bearing in mind all the relevant options and in a manner that is reasonable, relevant and germane to effectual the purpose for public good and in general public interest and it must not take any irrelevant or irrational factors into consideration or appear arbitrary in its decision. Considering the standard form contract which are also known as adhesion contract, the Court noted that citizens on many a occasion are dealing with Government are not in a position to bargain in contracts entered with the Government and in such cases a party must assent to it in terms of the dotted line contract or to forego the goods or service and the freedom of equal bargaining power is largely an illusion. The Apex Court then held, that if a contract or a clause to a contract is found unreasonable or unfair or irrational, one must look to the relative bargaining power or the contracting parties. The Apex Court also noted that the question then is whether, a clause in the contract is severable by an order of the Court. In the instant case what the tenderer is required to produce is the Dealer Possession Licence. What the petitioner had was the licence issued under the Rules for experimental licence. The petitioner was eligible to apply for D.P.L. licence and in fact has so applied. It is, therefore, not possible to accept the contention raised on behalf of the petitioner that the term in the clause requiring Dealer Possession Licence is irrational, arbitrary or one sided. We may mention that what the Apex Court was considering in the case of L.I.C. and Anr. (supra) was a concluded contract and not a case of tender as it is always open to a party if the clause is irrational or arbitrary or not germane for the purpose of the contract to challenge the same. In our opinion, therefore, the challenge on that count must also be rejected.
17. We may now deal with the contention of bias or malafides as alleged by the petitioner. In the first instance, there are no specific allegations against any of the respondents herein of malafides. The only contention urged is that the respondent No. 5 has political connections. The other allegation made is that the respondent No. 6 is biased in view of the opinion given by him in answer to a query raised by the respondent No. 3. The respondent No. 6 has explained that he does not even know the petitioner and he has merely given his opinion based on a query raised by the respondent No. 3 on account of objections raised by the petitioner herein. The respondent No. 6 is not one of the person who is a party to the tender process. The contentions were against the respondent Nos. 1 to 3. A plea of bias, therefore, is not against the committee selecting the tenders. The plea of bias, therefore, in our opinion is totally unfounded and made by a frustrated petitioner. It may be noted that according to the petitioner himself, the work was initially given to him for a specific period but the respondents have thereafter extended the same from time to time without inviting fresh tenders. The petitioner has no where pointed out that in the tender given to him there was any provision of extending the contract on year-to-year basis. The petitioner is therefore, is a beneficiary of a largesses given by the respondents. The petitioner further contends that the tender given by him is 41 per cent below the estimated rate in the earlier tender. We fail to understand this submission. If that be right the petitioner has benefited at the cost of the public exchequer, when contracts were extended to him from time to time. Even otherwise that is immaterial for the issue raised. The respondent Nos. 1 to 3 have pointed out the need for urgency in the matter. Even if there be no urgency the matter pertains to public need. The matter must be dealt with having regard to public interest. From the averments made in the petition we have not found any malafides against any specific person. That plea of malafides must be rejected.
18. The last contention is that the licence did not stand in the name of respondent No. 5, but in the name of his wife. We called for the original file from the office of respondent No. 6 to satisfy ourselves. The documents clearly show that the application made was by M/s. Samsal Telecom. Their authorised signatory was Pragati Ajay Patel. The application of Mrs. Pragati Ajay Patel, wife of respondent No. 5 was on behalf of Samsal Telecom. In Annexure A, it was clearly set out that the name of application was set out as M/s. Samsal Telecom. The licence has thereafter been issued in the name of Smt. Pragati Ajay Patel on behalf of M/s. Samsal Telecom. We do not find any infirmity with the licence possessed by respondent No. 5. That contention also must be rejected.
19. For the aforesaid reasons, we find no merit in this petition. Rule discharged, with costs.