K. M. MEHTA, J. ( 1 ) SHREE Nath Transport Company-the petitioner herein has filed this petition for quashing and setting aside the order dated 5. 1. 2000 passed by the Deputy Police Commissioner (Admn.), Baroda City, Baroda respondent no. 2 cancelling the tender of the petitioner and accepting the open tender from respondent no. 3. ( 2 ) THE facts giving rise to this petition are as under:2. 1 The petitioner is carrying on business of giving cranes on rental basis. It has been stated in the petition that last year the respondent no. 2 had accepted the tender of the petitioner and the petitioner has fulfilled the obligation of the contract satisfactorily. 2. 2. THE respondent no. 2 invited tender for getting the cranes on rental basis for a period of 2 years. Copy of the said tender has been produced at Annexure. B to the said contract. One of the important conditions of the tender is that the respondent no. 2 can terminate the contract without notice and compensation and the parties are not entitled to file any suit in this behalf. It has also been stated whether to accept any rate or not will be within the powers of of the Dy. Police Commissioner (Admn.), Baroda City, Baroda. If any subsequent offer of less rate is received, it will be within the sole discretion of the respondent no. 2 to accept the same or not. Along with the tender the party has to submit a demand draft of Rs. 60000. 00 in the name of Deputy Police Commissioner, Baroda City, Baroda. The rates are to be supplied within 7 days from the date of publication of the tender. 2. 3 pursuant to the tender at Annexure. B the petitioner submitted its tender by quoting a rent of Rs. 1270. 00 per day for each crane. The tender was opened in the presence of the parties who had submitted the tenders on 29. 12. 2000. The tender submitted by the petitioner was found lowest and on persuasion made by respondent no. 2 after negotiation the petitioner lowered his rate and had agreed to give the cranes on rent at the rate of Rs. 1210. 00 per day each crane. The respondent no. 2 thereafter accepted the tender of the petitioner and directed the petitioner to supply the cranes from 30. 12. 2000. 2 after negotiation the petitioner lowered his rate and had agreed to give the cranes on rent at the rate of Rs. 1210. 00 per day each crane. The respondent no. 2 thereafter accepted the tender of the petitioner and directed the petitioner to supply the cranes from 30. 12. 2000. The petitioner has produced a letter addressed by the Assistant Police Commissioner, Traffic Branch, Baroda City ,baroda addressed to the petitioner dated 29. 12. 2000 in this behalf which is at Annexure. C. 2. 4 It has been averred in the petition that it appears that Sanjaybhai Feliram Prajapati- respondent no. 3 approached respondent no. 2 and informed the respondent no. 2 that he was out of town on 29. 12. 2000 and so he could not remain present and submitted his open tender on 2. 1. 2001 and offered to give the cranes at the rate of Rs. 925. 00. It appears that the respondent no. 2 without informing the petitioner and even without inviting fresh tender accepted the offer of respondent no. 3 which was filed after opening and finalisation of the tender and cancelled the tender of the petitioner by order dated 5. 1. 2001. That the Tender Committee also recorded the rates submitted by the respondent no. 3 and the Tender Committee decided to award the contract from 7. 1. 2001 to 6. 1. 2002 to respondent no. 3. The Tender Committee decided that the rate of the petitioner was Rs. 1210. 00 per crane per day; whereas the rate of the respondent no. 3 was Rs. 925. 00 per crane per day and therefore, there is a benefit of Rs. 300. 00 per crane to the Government and the same is in the interest of the Government. The minutes of the Tender Committee is also taken on record in this behalf. ( 3 ) BEING aggrieved and dissatisfied by the aforesaid action the petitioner has filed the present petition before this Court. I have heard Mr. B. S. Patel learned advocate for the petitioner and he raised the following submissions:3. 1. HE submitted that the respondent no. 2 by its communication dated 5. 1. 2000 only accepted the tender of the petitioner and accordingly the work order was also given. The respondent no. I have heard Mr. B. S. Patel learned advocate for the petitioner and he raised the following submissions:3. 1. HE submitted that the respondent no. 2 by its communication dated 5. 1. 2000 only accepted the tender of the petitioner and accordingly the work order was also given. The respondent no. 2 authority has already accepted the tender and work order was also given in December 2000 and pursuant to that upto 5. 1. 2001 the petitioner had also supplied the goods. In view of the same, the subsequent order dated 5. 1. 2001 cancelling the contract of the petitioner by respondent no. 2 is illegal and bad in law. 3. 2 he further submitted that in any view of the matter when the tender of the petitioner was already accepted, then without hearing the petitioner, the authority ought not to have cancelled the contract of the petitioner and awarded the contract to the respondent no. 3 without inviting fresh tender and the same is violative of Article 14 of the Constitution of India. 3. 3. He further submitted that in this case the petitioner had given an original offer of Rs. 1240. 00 per crane per day and after persuasion the petitioner has agreed to give the reduced rate at Rs. 1210. 00 per crane per day which has been accepted by the Tender Committee. So the offer given by the petitioner was duly accepted by the Tender Committee and therefore in any view of the matter the acceptance of contract cannot be irrevocably revoked by the respondent no. 2 authority in this behalf. 3. 4 He further submitted that acceptance of the tender given by the respondent no. 3 after finalisation and acceptance of the tender given by the petitioner is admittedly without jurisdiction and contrary to the provisions of law of contract. 3. 5. HE has further relied upon the judgment of the Supreme Court in the case of Tata Cellular vs. Union of India reported in AIR 1996 SC 11 . Paras 23,96 and 99 of the said judgment are reproduced below:"23. When this is the position, strangely, the appellant is informed as follows: Ministry of Communication (Telecom Commission) New Delhi 110 001 No. 92 TM dated 27. 8. . 1993 To (Kind attention. . .) Subject: Tender No. 44-21/91 MMC (FIN) for franchise for cellular mobile telephone service for Bombay,delhi, Calcutta and Madras. When this is the position, strangely, the appellant is informed as follows: Ministry of Communication (Telecom Commission) New Delhi 110 001 No. 92 TM dated 27. 8. . 1993 To (Kind attention. . .) Subject: Tender No. 44-21/91 MMC (FIN) for franchise for cellular mobile telephone service for Bombay,delhi, Calcutta and Madras. Sir, Kindly refer letter of even No. dated 12. 10. 92 informing you that you have been provisionally selected for franchise for providing cellular mobile telephone service at on a non-exclusive basis. 2. The matter has been reconsidered in the light of the judgment delivered by the High Court of Delhi in this case M/s. . . have now been provisionally selected for franchise for providing cellular mobile telephone service at. . . in place of. . . on a non exclusive basis. The other franchise selected for. . . is M/s with M/s. . of. . . as their foreign partner. 3. The details of the rental, deposits and other terms fixed for the franchise will be intimated to you shortly. 4. Kindly get necessary formalities completed" by 30. 9. 93. "he has also relied upon para 113 of the said judgment which reads as under:" 113. The principles deducible from the above are: (1) The modern trend points to judicial restraint in administrative action. (2) The Court does not sit as a court of appeal but merely reviews the manner in which the decision was made. (3) the Court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible. (4) the terms of the invitation to tender cannot be open too judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts. (5) the Government must have freedom of contract. In otherwords, a fairplay in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi administrative sphere. More often than not, such decisions are made qualitatively by experts. (5) the Government must have freedom of contract. In otherwords, a fairplay in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by malafides. (6) quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure. "3. 6 the learned counsel has also relied on the decision in the case of TATA CELLULAR VS. UNION OF INDIA reported in AIR 1996 SC 11 in which at para 210 on page 50 the Honble Court has observed as under:-"from this letter we are not able to fathom the reason for omission. As seen above, Tata Cellular was originally selected for Delhi. By implementation of the judgement of the High Court it has been left out. Before doing so, as rightly urged by Mr. Soli J. Sorabjee, this appellant ought to have been heard. Therefore, there is a clear violation of the principle of natural justice. On an overall view we find it has two distinctive qualifications. "3. 7. Learned advocate for the petitioner has relied upon the judgment of the Apex Court in the case of M/s Dwarkadas Marfatia and Sons vs. Board of Trustees of the Port of Bombay reported in AIR 1989 SC 1642 . In para 25 of the said judgment the Apex Court has held as under:". . . . . . . WHERE there is arbitrariness in State action, Art. 14 springs in and judicial review strike such an action down. Every action of the Executive authority must be subject to rule of law and must be informed by reason. So, whatever be the activity of the public authority, it should meet the test of Art. 14. The observations in paras 101 and 102 of the Escorts case (supra) read properly do not detract from the aforesaid principles" ( 4 ) THE petitioner has also filed affidavit in rejoinder in which it has been stated that after the acceptance of the tender of the petitioner, the petitioner had supplied cranes to the respondent authorities and only on 6. 1. 1. 2001 the petitioner received a letter in which he has been directed that he should not supply the cranes from 7. 1. 2001. In view of the same it is stated that in this case the tender of the petitioner was accepted and pursuant to the said tender, the order was also given to the petitioner and thus contract was also executed and the petitioner supplied goods upto 6. 1. 2001. In view of the same it was submitted that it was a concluded contract and the respondent no. 2 had no power and jurisdiction to terminate the contract without hearing the petitioner. It was also submitted that the respondent no. 2 had no power to award the contract to respondent no. 3. ( 5 ) MR. B. S. Patel learned advocate for the petitioner submitted that according to English law the moment the goods are offered or accepted, that moment the contract is concluded and the contract binds both the parties from which they cannot get out. except by mutual consent. He further submitted that the tender of the petitioner was accepted and acceptance of the tender by the Tender Committee was absolute and unconditional and pursuant to the same the goods were already supplied and therefore, there was a concluded contract. ( 6 ) IT was further submitted that here the contract is to be entered into by the Baroda Municipal Corporation which is a public authority and public authority must reasonably bonafide and rationally and it cannot act arbitrarily in this behalf. Learned advocate for the petitioner submitted that judgment of the Supreme in Tata Cellular case (supra) squarely applies to this case and the petition should be allowed. ( 7 ) MY attention was drawn to What the expression "tender" means. The expression tender under the Law of Contracts is understood in two distinct senses. First the expression denotes a tender of performance or offer of performance or attempted performance of a contract. Where a party to a contract who is under an obligation to perform makes a valid offer of performance or tender of performance, he is deemed to have performed his contract But if the other party who is entitled for performance wrongfully refuses to accept the performance so tendered, the contract is deemed to be discharged by tender. Secondly it is understood in the sense of a quotation. Secondly it is understood in the sense of a quotation. When the offer of such tender is accepted by the party inviting tenders, a contract emerges between the parties. Section 37 of the Indian Contract reads as under:" The parties to a contract must either perform, or offer to perform, their respective promises, unless such performance is dispensed with or excused under the provisions of this Act, or of any other Law" ( 8 ) ON behalf of the respondent no. 2 authority Ms. Gajjar appeared. She has relied on affidavit in reply dated 28. 3. 2001 filed by Smt. Meera Ramnivas. She stated in the affidavit that in this case the tender of the petitioner was under consideration and there was a proposal to accept the tender of the petitioner but no order was issued. In the meantime respondent no. 3 has requested that he he was out of Baroda City and because of that reason he was not able to submit the tender in time. She has also stated that respondent no. 3 was willing to give six cranes on the rental basis of Rs. 925. 00 per crane per day. Looking to the difference of the rates given by the petitioner and respondent no. 3, the Government is saving Rs. 1710/per day and Rs. 61,300/=- per month and for the year Rs. 7. 35,600. 00. Looking to the benefit the Government looked into the public exchequer and thereby asked to give a report in writing and thus the said party agreed to fulfil all the conditions which were prescribed in the tender notice. The party has also given in writing that they are able to provide six cranes as required at the rate of Rs. 925. 00 per crane per day. The members of the Tender Committee then cancelled the tender of the petitioner and decided to accept the tender of respondent no. 3 which was Rs. 925. 00 per crane per day. Therefore, no order was issued in favour of the petitioner whose rate was Rs. 1210. 00 per crane per day. The respondent no. 2 has relied upon tender conditions nos 4,5 and 8 which read as under:"4. The services of the cranes can be stopped at any time. 5. The services of the cranes can be cancelled at any time and no compensation shall be paid to the party. 8. 1210. 00 per crane per day. The respondent no. 2 has relied upon tender conditions nos 4,5 and 8 which read as under:"4. The services of the cranes can be stopped at any time. 5. The services of the cranes can be cancelled at any time and no compensation shall be paid to the party. 8. The D. C. P. (Admn) shall be the final authority to decide the case of acceptance or rejection of the tender and nobody shall challenge his order. "in view of the same it was decided in good faith that the lowest rate of Rs. 925. 00 per crane per day be considered. The committee proceedings were drawn and all the members of the committee have agreed to pass the tender of respondent no. 3 and thereby they signed the proceedings in this behalf. ( 9 ) THE respondent no. 2 has disputed the letter dated 29. 12. 2000 and stated that the Assistant Police Commissioner has no power to issue the said communication. The respondent no. 2 has stated in the affidavit that since the quotation of the respondent was the lowest, the quotation of the petitioner came to be cancelled by respondent no. 2; otherwise the Government was likely to lose sizable amount in this behalf. ( 10 ) THE respondent no. 3 has also filed affidavit dated 25. 1. 2001 in which also it is stated that the the order was not given to the petitioner by respondent no. 2. Respondent no. 3 has stated in his affidavit that as the respondent no. 3 decided to supply the cranes at the rate of Rs. 925. 00 per crane per day, which was the lowest has been accepted by the respondent no. 2. The respondent has also stated that he has submitted the demand draft of Rs. 60000. 00 as per the terms and conditions of the tender. Respondent no. 3 has denied all other aspects in this behalf. ( 11 ) ON the other hand learned advocate for the respondent no. 2 submitted that the contract has been entered into with the respondent no. 3. Government has accepted in the interest of public exchequer and acted bonafide with a view to see that the Government saves a sizable amount. Respondent no. 3 supported the stand of the present respondent no. 2 in this behalf. 2 submitted that the contract has been entered into with the respondent no. 3. Government has accepted in the interest of public exchequer and acted bonafide with a view to see that the Government saves a sizable amount. Respondent no. 3 supported the stand of the present respondent no. 2 in this behalf. ( 12 ) I have considered the aforesaid submissions in this behalf. In my view, the respondents have invited tenders. The petitioner made an offer against the said tender. Thereafter negotiations took place and the petitioner reduces the price per crane per day from Rs. 1270. 00 to 1210/- which was duly accepted by the Tender Committee and pursuant to the same goods were also supplied by the petitioner to the respondent no. 2. Thus the offer made by the petitioner was unconditional and the same was accepted by respondent no. 2 which has resulted into a binding and concluded contract. My my view therefore, the respondent no. 2 could not have cancelled the contract of the petitioner without hearing the petitioner in view of the judgment of the Supreme Court in Tata Cellular case (supra ). ( 13 ) IN my view the action of the respondent authority to give contract to respondent no. 3 is also illegal because even if the respondent no. 2 authority wanted to award the contract to respondent no. 3, respondent no. 2 ought to have at least heard the petitioner and also offered the petitioner as to whether he desired to reduce the price in view of the offer made by respondent no. 3 or not. That exercise ought to have been undertaken by respondent no. 2 in this behalf. Without entering into said exercise and directly giving the contract to the respondent no. 3 is also illegal and the same is also contrary to the principles laid down by the Supreme Court in the case of Tata Cellular (Supra ). In my view, in fact the tender condition was to pay DD for Rs. 60,000. 00 by the last date and said condition has also been violated by the respondent no. 3. But apparently he has paid the amount of Rs. 60000. 00 after the date of the offer. In view of the same, the action of the respondent no. 2 in awarding the contract to respondent no. 3 is illegal, bad and liable set aside. 3. But apparently he has paid the amount of Rs. 60000. 00 after the date of the offer. In view of the same, the action of the respondent no. 2 in awarding the contract to respondent no. 3 is illegal, bad and liable set aside. The petition is accordingly allowed. The respondent no. 2 is directed to invite the petitioner and respondent no. 3 and ask them to quote the rate for tender and whose rate are in the interest of the Baroda Municipal Corporation may be accepted. No order as to costs. .