Bombay High Court
Infrastructure Leasing & Financial vs State Of Maharashtra on 20 August, 2009
Author: Swatanter Kumar
Bench: Swatanter Kumar, A.M.Khanwilkar
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1454 OF 2009
WITH
CHAMBER SUMMONS NO. 266 OF 2009
IN
WRIT PETITION NO.1454 OF 2009
W.P. NO. 1454 OF 2009
1. Infrastructure Leasing & Financial )
Services Ltd., a company incorporated
ig )
under the provisions of Companies Act, )
1956 having their office at The IL&FS )
Financial Centre, Bandra Kurla Complex, )
Bandra (East), Mumbai - 400 051. )
2. Mr. Ram Walase, )
Senior Vice-President of Petitioner No.1, )
having his office at The IL&FS Financial )
Centre, Bandra Kurla Complex, )
Bandra (East), Mumbai - 400 051. ).. Petitioners
Versus
1. State of Maharashtra, )
2. Superintending Engineer, )
Mumbai PWD Circle, 25, Marzban Road, )
Fort, Mumbai - 400 001. ).. Respondents
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2
WITH
CHAMBER SUMMONS NO. 266 OF 2009
IN
WRIT PETITION NO.1454 OF 2009
1. Infrastructure Leasing & Financial )
Services Ltd., a company incorporated )
under the provisions of Companies Act, )
1956 having their office at The IL&FS )
Financial Centre, Bandra Kurla Complex, )
Bandra (East), Mumbai - 400 051.
ig )
2. Mr. Ram Walase, )
Senior Vice-President of Petitioner No.1, )
having his office at The IL&FS Financial )
Centre, Bandra Kurla Complex, )
Bandra (East), Mumbai - 400 051. ).. Petitioners
Versus
1. State of Maharashtra, )
2. Superintending Engineer, )
Mumbai PWD Circle, 25, Marzban Road, )
Fort, Mumbai - 400 001. ).. Respondents
And
D.B. Reality Pvt. Ltd., )
a Company incorporated under the )
provisions of Companies Act, 1956, )
having their office at DB House, )
Gen A.K. Vaidya Marg, Goregaon (E), )
Mumbai - 400 063. ).. Interveners
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Shri Aspi Chinoy, Sr. Advocate with Shri V.R. Dhond i/by Negandhi,
Shaha and Himayatullah for the Petitioners.
Shri R.M. Kadam, Advocate General along with Shri N.P. Pandit, AGP for
the State.
Shri I.M. Chagla and Shri Janak Dwarkadas, Sr. Advocates, with Shri
Chirag Balsara i/by RMG Law Associates for the Interveners.
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CORAM : SWATANTER KUMAR, C.J. &
A.M.KHANWILKAR, J
JUDGMENT RESERVED ON : 13TH AUGUST, 2009
JUDGMENT PRONOUNCED ON : 20TH AUGUST, 2009
JUDGMENT:( PER SWATANTER KUMAR, CJ.) Heard. Rule. Rule made returnable forthwith. By consent of the parties, taken up for hearing and final disposal.
2. The Petitioners approach this Court under Article 226 of the Constitution of India seeking for a direction to the Respondents to open the bid submitted by the Petitioners for the work of Development of Government buildings in Mantralaya Precinct, Mumbai, through private participation" and consider the same on ::: Downloaded on - 09/06/2013 14:55:16 ::: 4 merits in accordance with law. It was also prayed that the endorsement made by the Respondents on the bid of the Petitioners as "Late Bid" received at 15.02 hours be quashed and the Respondents be restrained from proceeding with the tender process.
However, after the institution of the present Writ Petition, it was communicated to the Petitioners by the Respondents by their letter dated 3rd August, 2009 that they had taken a decision to reject the Petitioners' bid as having been received late and Petitioners by way of amendment prayed for quashing of the decision to reject the Petitioners' bid as having been received late conveyed by letter dated 3rd August, 2009.
3. Necessary facts are that the State of Maharashtra in January, 2009 floated tender for the work of "Development of Government buildings in Mantralaya precinct, Mumbai through Private Participation". The bids were to be received upto 19th January, 2009 upto 3.00 p.m. However, this time-table was changed and the date fixed for receipt of the said tender was altered to 14th July, 2009 which again was postponed to 28th July, 2009 upto 3.00 p.m. According to the Petitioners, they have prepared their bid document well in time and Petitioner No.2 attended the office of the ::: Downloaded on - 09/06/2013 14:55:16 ::: 5 Respondent/State on 28th July, 2009 in the afternoon. Two senior officers of the Petitioners were to submit the tender as it was of very high profile nature. The Petitioners had started well in time so as to reach the office of the Respondents much before the time, however, there was a traffic jam at Haji Ali and Worli which was caused by New Era School Rasta Roko at Pedder Road and the entire traffic had come to a halt. Despite this, they were able to reach before 3.00 p.m. and at about 2.55 p.m., they were standing in a queue. It is further averred by the Petitioners that one person was ahead of Petitioner No.2 who submitted the bid to the concerned officer/clerk at the office of Respondent No.2. This bid was received from that person at about 14.56 hours. This entry was seen by Petitioner No.
2. Petitioner No.2 thereupon immediately presented the bid and the same was received by the said person. While the receiving clerk was examining the bid box, some persons, who appeared to be the Respondents' representatives and other tenderers, rushed towards the table inside the 'receiving area' and shouted that "time is up, do not accept the bid". The receiving clerk told them not to disturb him and tried to pacify them. After pacifying the persons raising slogans, the Clerk, who received the bid and issued acknowledgment for receipt of the bid, put the time as 3.02 p.m. A Copy of this ::: Downloaded on - 09/06/2013 14:55:16 ::: 6 acknowledgment is annexed to the Writ Petition at Exhibit-E. The Petitioners protested the same immediately at that time and even submitted a letter raising a protest against the remark made on the acknowledgment slip.
4. It is also averred in the Writ Petition that when they went to deliver the letter on 28th July, 2009 itself, they noticed that there were two wall clocks in the receiving area, one which was for the internal area where the clerk was sitting and the other was at the main door of the office. The clock in the receiving area was 2 to 3 minutes faster and the person there informed that the bid would be received as per the office clock. In these circumstances, the entry made by the receiving clerk was erroneous, factually incorrect and was an attempt to oust the Petitioners from the bid process. As no response was received to the letter dated 28th July, 2009, on 31st July, 2009 itself, the Petitioners along with the newspaper cuttings and other documents lodged a detailed protest with the Respondents.
On 31st July, 2009 the Petitioners were informed that an inquiry into the events leading to the making of the disputed endorsement would be held and the Petitioners were invited to put forward their version before a Committee constituted for that purpose on 1st August, 2009.
::: Downloaded on - 09/06/2013 14:55:16 ::: 7Accordingly, they appeared before the Committee and recorded the relevant facts and submitted that the endorsement was ex facie erroneous. Despite this fact, the Respondents issued a letter dated 3rd August, 2009 communicating to the Petitioners that their tender was treated as late bid and were called upon to take back the said tender document vide letter Exhibit-I. This Letter dated 3rd August, 2009 Exhibit -I has been challenged by the Petitioners in the present Writ Petition on the grounds as already noticed above.
5. The Superintending Engineer, Mumbai PWD Circle, Mumbai, filed an affidavit-in-reply in which not much dispute is raised about the facts but they have specifically stated that the tender of the Petitioners was submitted at 3.02 p.m. according to the watch in front of the tender receiving clerk. Before that, M/s. D.B. Reality Private Limited had submitted a sealed cover at 2.55 p.m. while another tender purchaser i.e. India Bulls Real Estate Limited submitted its tender at 2.56 p.m. on 28th July, 2009 itself. As the two other tenders were submitted in time, no objection was raised before acceptance of the tender. After accepting the tender of the Petitioners at 3.02 p.m., a remark of "late bid" was made as the same was beyond the prescribed time of 3.00 p.m. It is also stated in this affidavit that a ::: Downloaded on - 09/06/2013 14:55:16 ::: 8 Committee was constituted to inquire into the said incident. As certain important facts have been stated in the said affidavit, it is useful to refer to following averments from it.
"6. ..... I say that, the 2 parties who had objected to the receipt of the Petitioners bid gave their objection in writing and the Petitioner also gave a letter alleging stating that he had submitted the tender at 2.57 p.m. And not a 3.02 p.m. Hereto annexed and marked Exhibit E and F & G respectively are the copies of the said objection letters of the first 2 parties and Petitioners letter.
7. I say that the deadline can only be extended before the deadline ends by issuing a corrigendum before the deadline and not thereafter. The said corrigendum is to be issued to all tender purchasers. Thus, if the deadline for submitting the tenders has to be now further extended, the same cannot be done now and the entire tender process will have to be started afresh and will only delay the project further.
8. I say that, in view of this dispute, on 29th July, 2009, I formed a Fact Finding committee consisting of 2 Deputy Engineers, one Divisional Accountant and one Executive Engineer to inquire into the above incident and the Committee thereafter called the 3 parties at 12 noon on 1st August, 2009 and all the 3 parties remained present. One of the Objectioner/Bidder and the Petitioner submitted their submission in writing whilst the other Objectioner/Bidder made oral submission and subsequently submitted his objection in writing on 3rd August, 2009 in the morning.
I say that, the statement of the Tender Receiving Clerk was also recorded, who confirmed ::: Downloaded on - 09/06/2013 14:55:16 ::: 9 that the Petitioner had submitted his tender only at 3.02 p.m. And he had accordingly mentioned the time on the counterfoil as well as on the tender. The Committee specifically asked the Petitioner to produce any evidence which the Petitioner could in support of his contention that he had submitted the tender at 2.57 p.m. However, the Petitioner could not and did not produce any evidence. The Committee accordingly then resolved and made a report that in the absence of any other evidence and in view of the statement of the tender receiving clerk who is a responsible Government servant and also in view of the statement of the other 2 Objectioners/Bidders who had recorded their objections then and there itself by remaining present and by confirming that the Petitioner had submitted his bid document only after 3 p.m. The Petitioners bid was in fact submitted after 3 p.m.
9. I say that, in view of the above report, I accordingly informed the Petitioner on 3rd August, 2009 that his tender had been submitted after stipulated time of 3 p.m. and was therefore treated as late bid and would have to be returned to him and the Petitioner should therefore take back his tender.
10. I say that there is hardly any time taken or required for the purpose of issuing an acknowledgment and the same in any event take less than a minute, as only the time and the name of the party is required to be put on the 2 counterfoils one of which is issued to the party. This is clear from the fact that the first 2 tenders were received within the span of 1 minute each namely 2.55 p.m. And 2.56 p.m. Had the Petitioner submitted his tender at 2.57 p.m. The same would have been acknowledged as received at that time. Thus it is clear and evident that the Petitioner has indeed submitted his tender beyond the stipulated deadline."
::: Downloaded on - 09/06/2013 14:55:16 ::: 106. One Shri Vijay R. More, Senior Clerk, working in the office of the Superintending Engineer, Mumbai, who infact was the receiving Clerk, has also filed his affidavit wherein he has stated that the representatives of the Petitioners came to the Circle Office to submit their tender at 3.02 p.m. as per the office clock, which he received at 3.02 p.m. He along with his affidavit has annexed the copy of the report Exhibit-A which, according to his affidavit, was submitted to the Superintending Engineers.
7. We may also notice that chamber summons bearing No. 266 of 2009 has been taken out by the Intervenor - D.B. Reality Pvt.
Ltd. which has also submitted its tender. In the affidavit in support of the said Chamber Summons, on behalf of D.B. Reality Pvt. Ltd., it has been stated that the bid of the Intervener was accepted at 14.55 hours whereas the tender of India Bulls Real Estate Ltd. was accepted at 14.56 hours. The tender of the Petitioners was not accepted as the Petitioners' representatives entered the tender submission room after 15.00 hours. This chamber summons was heard along with the Writ Petition and the Applicants were granted liberty to address the Court on the matter in issue.
::: Downloaded on - 09/06/2013 14:55:16 ::: 118. It is not in dispute before us that there were three tenderers who had come to deposit their respective bids on 28th July, 2009. The Intervenor viz. M/s. D.B. Reality Pvt. Ltd., M/s. India Bull Pvt. Ltd. and the Petitioners. The other two had submitted their bids at 2.55 p.m. and 2.57 p.m. on that date, while the Petitioners' bid is stated to have been received at 3.02 p.m. Thus, there was the remark by the Clerk as "Late Bid." As is evident, the controversy in the present case therefore falls in a very narrow compass.
9. It would be essential to notice the conditions relating to the submission of the bid and its effect. The said terms and conditions have been relied upon by the parties before us as the very genesis of the controversy would be controlled with reference to these terms which can usefully be reproduced here. As per the tender programme declared by the Respondents, the cost of the project was 813.13 crores and was required to be completed within 48 months. The tender documents were to be sold between 12th June, 2009 to 6th July, 2009 and the bids were to be submitted at the given date which was extended from time to time and finally it was to be submitted by 28th July, 2009 by 3.00 p.m. Clause (9) of the Instructions to Bidders (ITB) grants liberty to the Employer to modify ::: Downloaded on - 09/06/2013 14:55:16 ::: 12 the bid document at any time prior to the deadline for submission of bid for any reason, whether at his own initiative or in response to a clarification requested by a prospective bidder by issuance of an addendum. It further requires that the addendum will be sent in writing to all prospective bidders who have purchased the bid document, for incorporation in the bid and will be binding on the bidders. Clause 17 thereof contemplates that the bidder shall submit 2 sets of bid documents duly signed in a sealed cover out of 3 sets supplied to the bidder with financial offer in a prescribed form separately in Envelope -II. The documents to be contained in Envelope -I and Envelop -II have been specified in the ITB.
10. Clause 18 deals with the deadline for submission of bids.
It reads as under: -
"18. The bid shall be received by the Superintending Engineer at the address mentioned therein not later than as prescribed (As per Contract Data in Volume-II). The Employer may at his discretion extend the deadline for submission of bid issuing an addendum in accordance with Clause -9 of ITB, in which case, all rights and obligations of the Employer and bidders previously subjected to the original deadline shall therefore be subjected to new deadline as extended."::: Downloaded on - 09/06/2013 14:55:16 ::: 13
11. Clause 19 has some bearing on "Late Bid" which is reproduced hereunder.
"19. Bid submitted after the deadline for submission will either not be received or it received inadvertently, will not be opened and shall be returned unopened to the bidder."
12. It is well settled principle of interpretation of clauses of a contract that they should be interpreted with the rule of plain construction while giving effect to the intent of the parties as well as ensuring that the object of the contract stated in the terms and conditions is also achieved. The rule of practical construction can safely be applied for understanding such terms. The use of discretion should satisfy both the ingredients i.e. Fairness and transparency. Exercise of such discretionary power should be in consonance with the specified terms and conditions which are binding on all the concerned. It was contended that the above noticed terms and conditions cannot be strictly construed so as to produce results which will frustrate the cause of contract. The question of receiving tender by the Superintending Engineer could be ::: Downloaded on - 09/06/2013 14:55:16 ::: 14 interpreted so as to include such other persons authorised on his behalf and the practical interpretation would require such an approach to be adopted. It is therefore desirable to construe these terms in somewhat liberal manner insofar as it furthers cause of the contract, fair competition as well as public purpose. It is also a settled principle that the terms of contract may be strictly read and natural meaning should be given to it and no outside aid should be sought unless the meaning is ambiguous. Strict reading of terms should be understood in its correct perspective and these principles need be kept in mind while reading the terms and conditions inviting tender and the purpose for which they have been stated. ( Ref: United India Insurance Co. Ltd. v. Harchand Rai Chandan Lal, (2004) 8 SCC
644).
13. The above two clauses require that the bid has to be received by the Superintending Engineer at the address mentioned not later than as prescribed. This deadline can be extended at the discretion of the Employer. A bid which is submitted late will not be received or if received inadvertently will be returned to the bidder without being opened. The terms and conditions of the contract therefore contemplate that the bid document should have been ::: Downloaded on - 09/06/2013 14:55:16 ::: 15 received by the Superintending Engineer within time and ought not to have been received at all beyond time and returned if received inadvertently. If neither of these conditions have been satisfied in the present case, it was open to the Respondents to decline to receive the bid of the Petitioners. The need for returning the bid document would only arise if it was received inadvertently. In the present case, the bid has not been received inadvertently but was received after due thinking and deliberation and as per the affidavit of the Respondents after the competent authority had expressed its opinion the bid document was offered to be returned. We are aware that even if the terms and conditions of the tender document provide for receiving of bid by a designated officer, somebody else on his behalf could receive it and it may not be enforced as a condition mandatory in character but at the same time, the fact of the matter is that the Superintending Engineer would be the competent authority to take decisions in this regard. It is not even the case of the Respondents before us that the bid documents were not received by the Respondents or that they were received by mistake or inadvertently. Certainly these two aspects may not lead to an illegality or irregularity which will invalidate the tender process but certainly these are the matters of some concern.
::: Downloaded on - 09/06/2013 14:55:16 ::: 1614. It is one thing to say that it be received inadvertently and another thing that the same be received with remark or be not accepted at all as contemplated under the terms of Clause (19) of the Instructions to Bidders (ITB). This exercise of discretion itself indicates the intent and meaning given and understood by the Respondents themselves of these two clauses. The surrounding circumstances thus would have a bearing on the controversy in question. In the case of State Bank of India & Anr. v. Mula Sahakari Sakhar Karkhana Ltd., (2006)6 SCC 293, the Supreme Court held as under:-
"23. The document in question is a commercial document. It does not on its face contain any ambiguity. The High Court itself said that ex facie the document appears to be a contract of indemnity. Surrounding circumstances are relevant for construction of a document only if any ambiguity exists therein and not otherwise.
xxx xxx xxx
32. It is one thing to say that the nature of a transaction would be judged by the terms and conditions together with the surrounding and/or attending circumstances in a case where the document suffers from some ambiguities ::: Downloaded on - 09/06/2013 14:55:17 ::: 17 but it is another thing to say that the court will take recourse to such a course, although no such ambiguity exists."
15. Now we would examine the factual matrix of the case. It is a settled principle of law that the petitioners will have to stand on their own legs before the Court. But at the same time, we cannot overlook the fact that the Petitioners before us have approached the Court under Article 226 of the Constitution of India which is an extra ordinary but equitable jurisdiction. Justitia non novit patrem nec matrem; solam veritatem spectat justitia meaning that justice knows not father nor mother; justice looks at truth alone. It will be for the Court to examine the truthfulness of the allegations rather than deciding the case on allegations which are not substantiated by one party or the other. Res judicata pro veritate accipitur meaning that a matter adjudged is accepted for truth.
16. The Supreme Court in the case of Ajay Krishan Shinghal & Ors. v. Union of India & Ors., (1996)10 SCC 721 clearly held that there is a presumption in favour of official acts. The acts which are done in the normal course of business of the Government can safely be relied upon by the Court unless contrary is shown. The Courts ::: Downloaded on - 09/06/2013 14:55:17 ::: 18 have even gone to the extent of holding that the allegations of misuse of power cannot be easily relied upon as presumption is always in favour of an act being legal and it should not be readily inferred to the contrary. This view was reiterated by the Supreme Court in Municipal Corporation of Delhi v. Qimat Rai Gupta & Ors., (2007)7 SCC 309.
17. In the light of these principles while referring to the case of the Petitioners we would preferably rely more on the affidavits and enquiry conducted by the Respondents themselves. It is not in dispute before us that the Superintending Engineer had directed an inquiry into the matter in which the statement of the receiving clerk has been recorded and the report has been prepared. The said report is placed before us to which we would shortly refer in some detail.
18. According to the Petitioners he had reached the office premises before 3.00 p.m. and was in a queue and in fact he saw the entry being made for receiving the bid of India Bulls Real Estate Limited at 2.57 p.m. on 28th July, 2009, and had offered his bid to the clerk before 3.00 p.m. but erroneously, incorrectly and contrary to ::: Downloaded on - 09/06/2013 14:55:17 ::: 19 the true facts, time of 3.02 p.m. was noticed on the acknowledgment receipt which is violative of Articles 14, 19(1)(g) and 300A of the Constitution of India. It will be appropriate for the Court to preferably believe the affidavit of the official Respondents wherever the facts are in dispute between the parties. As far as the Petitioners and the private Respondents are concerned, they are interested parties and would be out to cause prejudice to each other but what has been done by the official Respondents would have a presumption of correctness as well as would reflect the correct state of affairs. In the affidavit filed by the Senior Clerk Shri Vijay R. More, report is annexed which was submitted to the Executive Engineer. In this report, it has been averred that at 2.55 on 28th July, 2009 p.m., M/s.
D.B.Reality Private Limited deposited the tender in a sealed cover thereafter India Bulls Real Estate Limited deposited their tender at 2.56 p.m. An interesting fact has been revealed in this report which reads as under:-
"At the time when the Representatives of M/s. D.B. Reality Pvt. Ltd. and India Bulls Real Estate Ltd. enquired as to as per which clock (watch) the process of acceptance of tenders shall commence, they were told that the acceptance of tender will be stopped at 3.00 O'clock as per the watch on the main door of the office."::: Downloaded on - 09/06/2013 14:55:17 ::: 20
19. It is clear from the above part of the report that the process of acceptance of tender was to be closed at 3.00 p.m. as per the watch at the main door of the office and not the watch inside the cabin of the receiving clerk. It is further stated that the representatives of the Petitioners came with the sealed tender to the receiving clerk at 3.02 p.m. as per the clock in his office. Then there was an objection raised by the other two people and they even went to the Assistant Superintending Engineer. The Assistant Superintending Engineer discussed the matter in presence of the representatives of the parties and issued direction to receive the bid of the Petitioners with the remark "received late."
20. In other words, the report had been submitted to the concerned Authorities after conducting a proper inquiry and even recording the statement of Shri More, the Receiving Clerk of the Respondent. In his statement, Shri More has stated that one tender was received at 2.55 p.m. while other was received at 2.56 p.m. He confirmed the fact that on the query made by M/s. D.B. Reality Private Limited, closing the process of receiving of tender by 3.00 p.m. was to be as per the watch on the main door of the office. As ::: Downloaded on - 09/06/2013 14:55:17 ::: 21 per his statement, the representatives of the Petitioners had come at 3.02 p.m. with a bid in a sealed cover to which an objection was raised by other tenderers and thereafter they had gone to the Assistant Superintending Engineer and informed the fact of traffic jam etc. whereafter the Assistant Superintending Engineer had directed him to take the bid of the Petitioners and that is how he issued the acknowledgment receipt with the endorsements at 3.02 p.m.
21. In paragraph 6 of the Affidavit filed by the Superintending Engineer, somewhat different version has been put forward where it has been stated that the Petitioners had come to submit their tender in a sealed cover in a box at 3.02 p.m., according to the watch in front of the tender receiving clerk. According to that watch, other tenders have been received at 2.55 p.m. and 2.56 p.m. The constitution of the Committee and other factors have also been averred in that affidavit. The acknowledgment receipts issued to the respective tenderers are at Exhibits - B, C and D respectively annexed to the affidavit of Superintending Engineer, PWD.
Somebody, presumably the receiving clerk Shri More has signed the acknowledgment receipt on behalf of the Superintending Engineer and according to these acknowledgment receipts, tenders were ::: Downloaded on - 09/06/2013 14:55:17 ::: 22 actually received at 14.55, 14.56 and 15.02 hours, respectively. A detailed representation made by the Petitioners to the Authorities was submitted on the same date averring that they had submitted the tender at 2.55 p.m. but the endorsement of 3.02 p.m. was made arbitrarily. Exhibit-G to the Petition is the copy of photograph indicating both the watches i.e. watch inside the receiving clerk's room and at the entrance of the main office. There is nearly 3 minutes difference between these two watches as reflected in the photograph.
The watch in the receiving area was nearly three minutes faster than the watch in the main office. This photograph has been taken, as per the Petitioners, in the evening of the same day. The existence of these two watches, one at the receiving clerk's cabin and other at the entrance of the main office, is not disputed and there is no denial to the fact that they were showing different timing by approximately 3 minutes on that date i.e. on 28th July, 2009. Of course, the reason stated by the Petitioners that there was a traffic jam near Haji Ali on 28th July, 2009 because of Dharna or obstruction caused by the people on the problem of New Era School at Pedder Road and the entire traffic had come to a halt is hardly relevant as it was the obligation of the Petitioners to submit their tender before the limit prescribed by the Respondents which is 3.00 p.m. on 28th July, ::: Downloaded on - 09/06/2013 14:55:17 ::: 23 2009. But what had happened in nearly 5 minutes at the office of the Respondents is certainly relevant and the Court has to examine that aspect with reference to the facts placed on record. We have already noticed that we would prefer to rely on the affidavits filed on behalf of the Respondents and the report placed by them on record in preference to the affidavit of the private parties as those are the acts which are stated to have been done in normal course of official business of the Respondents. The acknowledgment receipt Exhibit-
E to the Petition has to be taken as ex facie correct. Thus, it will indicate that the tender of the Petitioners was received at 3.02 p.m. Indeed, if it is found that the tender presented by the Petitioners was after 3.00 p.m. as per the timing in the watch in the main office, the Petitioners will have no case. However, from the stand taken by the Respondents themselves, in particular, the affidavit of senior official of level of the Superintending Engineer persuades us to answer this controversy in favour of the Petitioners. The Respondents are bound by the stand taken in the said affidavit of the Superintending Engineer. In paragraph 6 of his affidavit, it is stated that the tender of Petitioners was received at 3.02 p.m. as per the watch in front of the tender receiving clerk's room. If it is so, the Petitioners' tender could not be said to have been received at 3.02 p.m. as the watch of the ::: Downloaded on - 09/06/2013 14:55:17 ::: 24 receiving clerk's cabin was running 3 minutes faster than the watch fixed at the main entrance of the office which, according to them, was the watch to indicate deadline of 3.00 p.m. On the bare perusal of photograph Exhibit - G to the Petition, one fact is clear, which even is an undisputed fact, that the watch at the main entrance of the office of the Respondents was running three minutes slower than the watch fixed in the cabin of receiving clerk. It would obviously mean that the correct time in the watch of the office of the receiving clerk at the time when the Petitioners presented their tender would be around 2.59 p.m. or so, but certainly not 3.02 p.m. - as was the time in the watch in the receiving area. This is fully substantiated by the averments made by the Senior Officer of the rank of Superintending Engineer who has said in paragraph 6 of his affidavit that it was 3.02 p.m. according to the watch in front of the tender receiving clerk's room.
22. Another aspect which cannot be ignored by the Court is that as per the affidavit and the report of the Respondents the other parties had raised objection and then obviously without issuing the acknowledgment receipt, the parties had gone to the Assistant and thereafter to the Superintending Engineer. The parties put forward ::: Downloaded on - 09/06/2013 14:55:17 ::: 25 their point of views before the Assistant Superintending Engineer and then he had directed the receipt of tender with the remark "late bid".
This obviously could not happen within 2 minutes or so instantaneously. It may also be noticed here that it is not the case of the Petitioners and for that matter even of the Respondents that the time of 3.02 p.m. was put on the acknowledgment because it was so decided after discussion and on instructions of the Assistant Superintending Engineer, as it is stated to be actual time of receipt of sealed bid.
Inevitable conclusion of the case put forward by the Respondents would be that the Petitioners must have come little earlier to 3.00 p.m. as per the watch in the main office.
23. The nature of the dispute between the parties cannot again be lost sight of as they were competitors of each other and occurrence of such an incident should not be permitted to prejudice any of the parties. The affidavits and the report submitted by the private Respondents do not support the version that the Petitioners came to the office only at 3.02 p.m.
24. In the case of Tata Iron & Steel Co. Ltd. v. Union of India and Others, (2001)2 SCC 41, the Supreme Court observed as under: -
::: Downloaded on - 09/06/2013 14:55:17 ::: 26"The doctrine of fairness and the duty to act fairly is a doctrine developed in the administrative law field to ensure the rule of law and to prevent failure of justice. It is a principle of good conscience and equity since the law courts are to act fairly and reasonably in accordance with law."
25. It is also a settled principle of law that the State and its instrumentalities ought to so design their activities as would ensure fair competition and non discrimination. They can augment their resources but the object should be to serve the public cause and to do public good by resorting to fair and reasonable methods. ( Ref:
Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai & Anr., (2004)3 SCC 214).
26. In the case of Haji T.M. Hassan Rawther v. Kerala Financial Corporation, AIR 1988 SC 157, the Supreme Court clearly stated the principle that the State or its instrumentalities while dealing with the public property owned by it should act carefully and such properties generally be sold by inviting tender which is not only to fetch highest price for the property but also to ensure fairness in the activities of the State and public authorities. The State and the Public Authorities should undoubtedly act fairly. Their action should be legitimate. Their dealings should be above board. Their ::: Downloaded on - 09/06/2013 14:55:17 ::: 27 transactions should not be suggestive of discrimination. Nothing should be done by them which gives an impression of bias, favouritism or nepotism.
27. These principles have to be squarely applied to the present case. We may also reiterate that the Court must examine the truthfulness which emerges from the record before the Court and it need not be unnecessarily influenced by one affidavit or the other.
The Court has to take cumulative effect of the pleadings of the parties with a particular reference to the affidavit and reports submitted by the Respondents which have been prepared in normal course of its official activities. The facts emerging from the record when reasonably construed would show that it is practically impossible to accept the contention that the tender was submitted by the Petitioners late. It is abundantly clear from the record that the tender must have been offered for receipt prior to 3.00 p.m. as all these events could not have happened within a span of two minutes.
Admittedly, and as is clear from the report, the parties were informed that acceptance of tender will be stopped at 3 O'clock as per the watch at the main door of the office, which obviously means, not as per the watch of the receiving clerk which was running three ::: Downloaded on - 09/06/2013 14:55:17 ::: 28 minutes faster.
28. This entire problem can even be viewed from another angle. Does any of the parties including the Respondent particularly would suffer from any prejudice if the tender of the Petitioners is also permitted to be considered ? Obvious answer would be in the negative. It is a tender of huge amount and it will be in the interest of the State on the one hand to have a wider choice out of the lowest bidders and on the other hand, it would serve the public interest. It can hardly serve any public purpose and public interest if fair competition is suppressed at this juncture. We are told that there are only three tenderers including the Petitioners.
Nothing substantial has happened as yet. In our view, no prejudice will be caused to any of the parties including the Respondent who will get wider zone of consideration by offering greater competition which will always be in the public interest. Obviously, the Petitioners would not gain anything as all the bids are in a sealed cover and it is for the State to take appropriate decision depending upon the clear technical bids and financial bids offered by the tenderers in accordance with the terms and conditions of the tender document.
::: Downloaded on - 09/06/2013 14:55:17 ::: 2929. For the reasons aforestated, we make the rule absolute to the extent of directing the Respondents to consider the bid of the Petitioners while processing the finalization of tender, as per the terms and conditions inviting tender and in accordance with law.
30. In view of the above, Chamber Summons stands disposed of accordingly.
31. No order as to costs.
CHIEF JUSTICE A.M. KHANWILKAR, J ::: Downloaded on - 09/06/2013 14:55:17 :::