Jammu & Kashmir High Court - Srinagar Bench
M/S Gousia Fayaz vs Skims & Anr on 2 December, 2013
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR OWP no. 1010 of 2013 CMP no. 1616 of 2013 M/s Gousia Fayaz Petitioners SKIMS & anr Respondents !Mr. F. A. Bhat, Advocate ^Mr. Shah Aamir, GA Honble Mr. Justice Ali Mohammad Magrey, Judge Date: 02/12/2013 : J U D G M E N T :
1. The petitioner in this petition is seeking issuance of writ in the nature of Mandamus directing the respondents to issue works contract of sanitation of SKIMS Medical College Hospital, Bemina, in his favour on the plea of having been declared as successful / lowest tenderer in the tendering process, and for declaring the condition contained in letter dated 12.06.2013 issued along with the Tender Notice, that tender fee of Rs.2,000.00 for downloaded tender documents should be within 03.07.2013, as ancillary / non-essential condition, and that the respondents be directed to waive off the said condition.
2. The case of the petitioner, as put forth in the writ petition, is that respondents issued Notice no. SKIMS-MC-04 of 2013 dated 12.06.2013, appended as annexure E to the petition, inviting tenders for allotment of contract of sanitation of SKIMS Hospital, Bemina, Srinagar, for one year. The last date for receipt of tender documents was fixed as 06.07.2013 up to 3 PM and the date of opening was fixed as 08.07.2013 at 2 PM. According to the petitioner, the tender fee prescribed for the tender documents was fixed at Rs.2,000.00 and the earnest money in the shape of CDR as Rs.1,00,000.00. It is the further case of the petitioner that he downloaded the tender documents from the net and submitted his tender on 06.07.2013 alongwith earnest money of Rs.1,00,000.00 as CDR as also Bank Draft of Rs.2,000.00. On opening of the tenders, the petitioner was declared as the lowest and, therefore, a successful bidder.
3. The grievance of the petitioner is that the work is not being formally allotted to him and that he is being told that along with the Tender Notice a letter dated 12.06.2013 had been issued which provided that the tender fee of Rs.2,000.00 should be in the shape of Bank draft to be deposited within 03.07.2013.
4. Respondents in their reply have stated that the abbreviated tender notice no. SKIMS-MC-04 of 2013 dated 12.06.2013 for outsourcing sanitation jobs of various areas of SKIMS Medical College Hospital, Bemina, was published in two local dailies, namely, Greater Kashmir and Zabarwan Times on 14.06.2013 and 15.06.2013, respectively. As per the above notice, the detailed tender document was to be purchased from the office of Senior Material Management Officer up to 03.07.2013 against tender fee of Rs.2000.00. So, it was explicitly made clear to all the intending tenderers that they could purchase detailed tender documents up to the prescribed date, i.e., 03.07.2013, beyond which date no tenderer / agency could purchase the same. It is further stated in the reply that the Notice Inviting Tender as well as the detailed tender documents were also made available on Website, and the intending tenderers could download the tender document, but it was prescribed that such tenders would be entertained only if the requisite tender fee in the shape of bank draft of Rs. 2,000.00 was within the stipulated sale date, i.e., 03.07.2013, and was accompanied with the tender documents. It is averred in the reply that the Tender Opening Committee, while opening the tenders on 08.07.2013 also rejected two more tenders of one Shri Mushtaq Ahmad Wani and M/s Albani & Co., as the bank drafts on account of tender fee enclosed with their tenders were not within the prescribed sale date of 03.07.2013. It is stated that the bank drafts of these two agencies were dated 04.07.2013 and 06.07.2013, respectively; whereas that of the petitioner was dated 06.07.2013. It is submitted that no right of the petitioner has been infracted; therefore, the writ petition is devoid of any merit.
5. I have heard learned counsel for the parties and considered the matter.
6. On behalf of the petitioner, it was contended that mention of tender fee in the tender notice is not an important condition and is merely a subsidiary or ancillary condition and non-fulfillment of the same would not affect the essential conditions of the tender. It was further argued that the condition could even be waived. To buttress his arguments in this behalf, the learned counsel for the petitioner cited and relied upon two judgments of the Supreme Court: one reported as Poddar Steel Corpn. v. Ganesh Engineering Works, AIR 1991 SC 1579, and the other downloaded, delivered in Mr. B. S. N. Joshi & Sons Ltd. v. Nair Coal Services Ltd., Case No. Appeal (Civil) 4613 of 2006 [arising out of SLP (Civil) No. 24879 of 2005] decided on 31.10.2006. The learned counsel also relied upon M/s Jyothi Krishna Engineers v. State Bank of Hyderabad, AIR 1993 Andhra Pradesh 327; M/s B. D. Yadav & M. R. Meshram, E & C. v. Administrator, 1964 Bombay 351; and an undated downloaded judgment of the Kerala High Court in Kollam Royal Park Hotel v. The State of Kerala, WP(C) No.2043 of 2010-V.
7. In Poddar Steel Corpn. v. Ganesh Engineering Works (supra), the Supreme Court has observed that the requirements in a tender notice can be classified into two categories those which lay down the essential conditions of eligibility and the others which are merely ancillary or subsidiary with the main object to be achieved by the conditions. It has been held that in the first case the authority issuing the tender may be required to enforce them rigidly; in the other cases it must be open to the authority to deviate from and not to insist upon the strict literal compliance of the condition in appropriate cases. In that case, the relevant clause of the tender notice required the tender to be accompanied by deposit of earnest money of Rs.50,000.00 by cash or by demand draft drawn on the State Bank of India. The tenderer to whom the tender was allotted had accompanied its tender with a Bankers cheque marked and certified by the Union Bank of India as good for payment. The Tender Committee also had verified the cheque from the Bank and allowed the tenderer to participate in the tender process. The unsuccessful tender challenged the decision by a writ petition before the Allahabad High Court contending that there was no defect in its tender and that the tender of the successful tenderer could not have been validly accepted as the necessary condition of payment of Rs.50,000.00 as earnest money with the tender had not been complied with. The High Court allowed the writ petition. The successful tenderer took the matter to the Supreme Court. It was in context of the aforesaid fact scenario that the Supreme Court allowed the appeal and set aside the judgment of the High Court holding as under:
As a matter of general proposition it cannot be held that an authority inviting tenders is bound to give effect to every term mentioned in the notice in meticulous detail, and is not entitled to waive even a technical irregularity of little or no significance. The requirements in a tender notice can be classified into two categories those which lay down the essential conditions of eligibility and the others which are merely ancillary or subsidiary with the main object to be achieved by the condition. In the first case the authority issuing the tender may be required to enforce them rigidly. In the other cases it must be open to the authority to deviate from and not to insist upon the strict literal compliance of the condition in appropriate cases. This aspect was examined by this Court in G. J. Fernandez v. State of Karnataka, (1990) 2 SCC 488 : AIR 1990 SC 958, a case dealing with tenders. Although not in an entirely identical situation as the present one, the observations in the judgment support our view. The High Court has, in the impugned decision, relied upon Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489 : AIR 1979 SC 1628, but has failed to appreciate that the reported case belonged to the first category where the strict compliance of the condition could be insisted upon. The authority in that case, by not insisting up on the requirement in the tender notice which was an essential condition of eligibility, bestowed a favour on one of the bidders, which amounted to illegal discrimination. The judgment indicates that the Court closely examined the nature of the condition which had been relaxed and its impact before answering the question whether it could have validly condoned the shortcoming in the tender in question. This part of the judgment demonstrates the difference between the two categories of the conditions discussed above. However, it remains to be seen as to which of the two clauses the present case belongs. While allowing the appeal in the aforesaid case, the Supreme Court held as under:
In the present case the certified cheque of the Union Bank of India drawn on its own branch must be treated as sufficient for the purpose of achieving the object of the condition and the Tender Committee took the abundant caution by a further verification from the bank. In this situation it is not correct to hold that the Diesel Locomotive Works had no authority to waive the technical literal compliance of clause 6
8. In Mr. B. S. N. Joshi & Sons Ltd. v. Nair Coal Services Ltd (supra), relied upon by the learned counsel for the petitioner, the Supreme Court, having regard to the principles laid down in its various judgments, has summarized the law as it stood on the date of the said judgment. The relevant paragraph of the judgment is extracted hereunder:
We are also not shutting our eyes towards the new principles of judicial review which are being developed, but the law as it stands now having regard to the principles laid down in the aforementioned decisions may be summarized as under:
i) If there are essential conditions, the same must be adhered to;
ii) If thee is no power of general relaxation, ordinarily the same shall not be exercised and the principle of strict compliance would be applied where it is possible for all the parties to comply with all such conditions fully;
iii) If, however, a deviation is made in relation to all the parties in regard to any of such conditions, ordinarily again a power of relaxation may be held to be existing;
iv) v) When a decision is taken by the appropriate authority upon due
consideration of the tender document submitted by all the tenders on their own merits and if it is ultimately found that successful bidders had in fact substantially complied with the purport and object for which essential conditions were laid down, the same may not ordinarily be interfered with;
vi) vii) Where a decision has been taken purely on public interest, the Court ordinarily should exercise judicial restraint.
The three judgments of the different High Courts in M/s Jyothi Krishna Engineers v.
State Bank of Hyderabad; M/s B. D. Yadav & M. R. Meshram, E & C. v. Administrator; and Kollam Royal Park Hotel v. The State of Kerala (supra) do not add anything to the preposition of law enunciated by the Supreme Court in the above two judgments.
9. Let the instant case be examined on the touch stone of the law laid down by the Supreme Court in Poddar Steel Corpn. v. Ganesh Engineering Works and Mr. B. S. N. Joshi & Sons Ltd. v. Nair Coal Services Ltd (supra).
10. Learned counsel for the respondents invited the attention of this Court to the tender notice no. SKIMS MC-04 of 2013 dated 12.06.2013. It is specifically provided therein that the detailed tender document can be had from the office up to 03.07.2013 against written application on the firms letterhead form, duly supported with the documents mentioned therein and non-refundable tender fee of Rs.2,000.00.
11. The deposit of bank draft of Rs.2,000.00 was a precondition for sale / obtainence of the tender documents and such documents could be had only till 03.07.2013. Without the purchase of the tender document, one would not be entitled to participate in the tender process. Essentially, therefore, one would have to purchase the tender document by or before the prescribed date, viz. 03.07.2013. Production of Bank Draft in the amount of Rs.2,000.00 was a precondition to the purchase of the tender document. As a necessary corollary, the bank draft had to be of a date within the prescribed date of sale of the tender documents, viz. 03.07.2013. This, therefore, constituted an essential condition to enable the petitioner to purchase the tender document and to participate in the tendering process. The prescribed date of sale and purchase of the tender document was not extended. It was not, therefore, within the power of the authority concerned to waive such condition, nor could the petitioners Bank Draft beyond that date be accepted. It may be mentioned here that with respect to those of the desiring tenderers who would wish to download the tender documents from the net, the tender notice contained the following cause:
The detailed tender document can also be downloaded from www.skims.ac.in. However, such tenders can be entertained only if the requisite tender fee in the shape of bank draft is within stipulated sale date i.e., 03.07.2013, is accompanied with the tender along with other requisite documents as mentioned above including C.D.R. For download tender it should be mentioned on the envelope with bold letters that the tender has been downloaded. The aforesaid clause specifically contained a condition that the downloaded tender documents can be entertained only if the requisite tender fee in the shape of bank draft was within the stipulated sale date, i.e., 03.07.2013. Admittedly, the petitioner had his bank draft dated 06.07.2013, i.e., of a date which fell beyond the sale date of the tender document. The stipulation constituted an essential condition to the entertainment of the tender document. Therefore, it does not lie in the mouth of the petitioner that the condition was ancillary, subsidiary or non-essential, or that it could be waived.
12. Facilitation provided to desiring tenderers to have the tender documents at their places of convenience on the internet, without they having to bother themselves to visit the tendering office to purchase the tender documents, would not dilute the aforesaid condition in the tender notice. The point is that if such a facility had not been made available, would it be possible for the petitioner to obtain the tender documents and participate in the tendering process? The answer clearly is in the negative. For purchasing the tender document by the fixed date viz. 03.07.2013, he had to produce a Bank Draft of Rs.2,000.00 which would necessarily have to be of a date upto 03.07.2013, not beyond that date. The judgments relied upon by the learned counsel for the petitioner instead of helping him, actually demolish his case. It is laid down therein that essential conditions of tender notice cannot be waived. In the instant case, production of Bank Draft of Rs. 2000.00 of a date prescribed in the notice inviting tender was fundamental to entitle the petitioner to participate in the tendering process. It, therefore, constituted an essential condition of eligibility and the authority issuing the tender was required to enforce it rigidly. Such a condition of eligibility to participate in the tendering process cannot be termed as ancillary and subsidiary, nor could the same be waived.
13. It may also be mentioned here that the learned counsel for the respondents has placed reliance on a judgment of the Supreme Court in TATA CELLULAR v. Union of India, (1994) 6 SCC 651. In that case, it has been held that the terms of the invitation to tender are not open to judicial scrutiny because the invitation to tender is in the realm of contract. Even in Mr. B. S. N. Joshi & Sons Ltd. v. Nair Coal Services Ltd (supra), cited and relied upon by the learned counsel for the petitioner, it has been held that if there are essential conditions, the same must be adhered to; and that if there is no power of general relaxation, ordinarily the same shall not be exercised and the principle of strict compliance would be applied where it is possible for all the parties to comply with all such conditions fully. It is not the case of the petitioner that the respondents have exercised any power of relaxation or that it was not possible for him to comply with the condition in question. Contrary to it, it is the case of the respondents that tender documents of two other tenderers have been rejected by them on the same ground. That being so, the petitioner has not made out any case of infringement of any of his rights or discrimination on any count, whatsoever.
14. Going by the law laid down by the Supreme Court in the cases mentioned above and even relied upon by learned counsel for the petitioner, there is no merit in this petition. It, accordingly, deserves to be dismissed.
15. This petition is, therefore, dismissed alongwith the connected CMP, however, without any order as to costs. Interim direction, if any, subsisting, shall stand vacated.
(Ali Mohammad Magrey) Judge Srinagar 02.12.2013 Syed Ayaz, Secretary