JUDGMENT : 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. 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. However, on account of opinion of their technical expert, who has closely examined the products, had opined that the product of C & S Company was not matching with the standards which were specified. 7. It is contended that the Nagarpalika therefore, vide letter dated 30.09.2015 called upon the petitioner and informed him about the technical expert's opinion and also to show willingness whether he would be capable of supplying the product of the brand which could match with specification. 7. It is contended that the Nagarpalika therefore, vide letter dated 30.09.2015 called upon the petitioner and informed him about the technical expert's opinion and also to show willingness whether he would be capable of supplying the product of the brand which could match with specification. In response to this communication dated 30.09.2015, the petitioner addressed a hand written communication dated 07.10.2015 clearly expressing his inability to supply the products of the specification which would match with the specification given by the technical expert. 8. It is contended that it is in view of the aforesaid inability the respondent Nagarpalika left with no other alternative but to cancel the tender and floated a new tender, whereby they had communicated to the petitioner about his disqualification based on the guidelines of the Government which are expressly set out in the instructions dated 25.08.2015. In these guidelines, it is specified that if person at whose behest a valid tender process is cancelled, then such person ought to be treated as disqualified for the subsequent period. 9. Having heard learned advocates for both the parties. It appears from the submissions on behalf of respondent Nagarpalika that after the successful conclusion of re-tendering, the contract is already awarded to one Kiran Electrical. The petitioner has, therefore, subsequently sought amendment to the cause title of this petition and added the successful bidder namely Kiran Electrical as party respondent No. 3. The said Kiran Electrical though served has not filed its appearance. 10. Considering the facts that after the successful completion of the re-tendering process, the contract is already awarded to the successful bidder and that too prior to filing of the present petition. This Court would not interfere in the process thus far concluded. However, at the same time considering the fact that the respondent Nagarpalika has after issuing of the first tender, where the petitioner was successful, has deviated to the extent of curtailing the names of the Companies from 7 Companies to 3 Companies, would amount to deviation in the essential conditions indicated in the tender. 11. In that view of the matter, the action of the petitioner in expressing his inability to supply the product of the brand which formed part of the original tender, but curtailed subsequently on the basis of expert opinion, would not be considered as disqualification. 11. In that view of the matter, the action of the petitioner in expressing his inability to supply the product of the brand which formed part of the original tender, but curtailed subsequently on the basis of expert opinion, would not be considered as disqualification. Even if, we accept the guidelines which are in the form of instructions from the State Government, we are unable to hold that the frustration of the 1st tender process can be attributed to any unwarranted action or omission on the part of the petitioner. In that view of the matter, the guidelines would not cover the facts of the present case and hence the disqualification against the petitioner on this ground alone cannot be sustained. 12. In view of the conclusion with regard to his disqualification as a necessary corollary, the forfeiture of the EMD of the petitioner will also not stand. With this background of the facts, coming to the first relief prayed by the petitioner regarding allowing him to participate and bid in the re-tendering process, it would be necessary to note that an opportunity was given to the petitioner by inviting him to express his ability to supply the goods of a particular specification of a particular Company, which he in unequivocal terms had declined in writing. Moreover, there is nothing on record to suggest that at any stage subsequent thereto the petitioner has informed the respondent Nagarpalika about his ability to supply the goods of particular specification and brand. Over and above, this is the most relevant aspect being the tender process having been successfully concluded and the work contract allotted to the successful bidder and the nature of work being in larger public interest, no further delay in execution of such work can be afforded. 13. In that view of the matter, though we hold that the disqualification against the petitioner would not stand, still this Court would not interfere and order re-tendering for the 3rd time. 14. In view of the aforesaid discussions, the petition is partly allowed. The disqualification addressed to the petitioner vide communication dated 29.02.2016 is hereby quashed and set aside and the respondent Nagarpalika is hereby directed to refund the EMD amount deposited by the petitioner in connection with this particular tender. 14. In view of the aforesaid discussions, the petition is partly allowed. The disqualification addressed to the petitioner vide communication dated 29.02.2016 is hereby quashed and set aside and the respondent Nagarpalika is hereby directed to refund the EMD amount deposited by the petitioner in connection with this particular tender. Such refund by the respondent Nagarpalika be made within a period of 4 weeks from the date of receipt of copy of this order. The petition is partly allowed to the aforesaid extent. Rule is made absolute to the aforesaid extent. 15. We do not propose to issue Notice or Rule to respondent No. 3, as earlier the notice is already issued to it and respondent No. 3 has chosen not to appear and this order is not likely to affect the respondent No. 3.