Jharkhand High Court
Ms Wave Industries Private Limited ... vs Food Supply on 7 May, 2015
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W. P. (C) No. 1445 of 2015
M/s Wave Industries Private Limited, Section3, Noida, Uttar
Pradesh through its authorised signatory Sri Harmeet Singh,
S/o Sri Dalbir Singh, Malasia, Dhanaura, Amroha, Uttar Pradesh
... ... Petitioner
Versus
1. The State of Jharkhand
2. Secretary, Department of Food, Public Distribution and
Consumer Affairs, Govt. of Jharkhand, Jagarnathpur, Ranchi
3. M/s Shree Tatyasaheb Kore Warana SSK Ltd., Panhala,
Kolhapur, Maharastra ... ... Respondents
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CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
For the Petitioner : Mr. Anil Kumar Sinha, Sr. Advocate
For the Respondents : Mr. Lukesh Kumar, J.C. to G.A.
04/07.05.2015Aggrieved by decision of the Tender Committee dated 30.03.2015, the petitionerM/s Wave Industries Private Limited has approached this Court by filing the present writ petition.
2. The petitionercompany pursuant to Etender notice dated 04.03.2015 submitted its bid. The date for opening the technical bid was 27.03.2015 and the financial bid was to be opened on 30.03.2015. The Tender Committee found the petitionercompany disqualified in the technical bid on the ground that the certificate issued by the Pollution Control Board was valid only upto 31.12.2014. Mr. Anil Kumar Sinha, the learned Senior counsel for the petitioner submits that submission of the pollution certificate was not a mandatory condition in the Tender. It was not an eligibility condition for the tenderer and therefore, at the time when the technical bid was opened the Tender Committee could have required the petitioner to produce a valid pollution certificate. It is submitted that in 2 view of Section 25 of the Water (Prevention and Control of Pollution) Act, 1974 and Section 21 of the Air (Prevention and Control of Pollution) Act, 1981 even after the expiry of the permission to operate order granted by the Pollution Control Board, an industry can run for another four months and thus, the validity of pollution certificate was extended for another four months. The learned Senior counsel for the petitioner refers to paragraph nos. 1719 in "Rashmi Metaliks Limited and Another vs. Kolkata Metropolitan Development Authority and Others", reported in (2013) 10 SCC 95 and submits that pollution certificate is only a collateral term.
3. The learned counsel for the respondentState of Jharkhand seriously opposes the writ petition and submits that the petitioner in terms of the tender document was not eligible, on the date when the technical bid was opened and therefore, it has rightly been declared disqualified in technical evaluation.
4. A perusal of the Technical Bid Check List discloses that a bidder should have "valid pollution control certificate issued by the Pollution Control Board of the State". There is no dispute that the pollution control certificate submitted by the petitioner was valid only till 31.12.2014 and thus, when the petitioner submitted its bid, the pollution control certificate issued in its favour was not a valid one. It is well settled that the terms of contract must be given a plain and literal meaning. It is also well settled that a bidder must fulfill all the conditions of the Tender and it is not open to the Tender Committee to relax conditions of tender in favour of one tenderer. In "Rajasthan State Industrial Development & Investment Corpn. v. Diamond & Gem Development 3 Corpn. Ltd." [(2013) 5 SCC 470] the Hon'ble Supreme Court has observed as under:
23. "........ Thus, contract being a creature of an agreement between two or more parties, has to be interpreted giving literal meanings unless, there is some ambiguity therein. The contract is to be interpreted giving the actual meaning to the words contained in the contract and it is not permissible for the court to make a new contract, however reasonable, if the parties have not made it themselves. ......................."
5. With reference to the submission based on the decision in "Rashmi Metaliks Limited and Another vs. Kolkata Metropolitan Development Authority and Others" (supra), I find that in the said case, the Hon'ble Supreme Court when found that gross income of a bidder was not one of the essential qualifications for participation in the tender, it was held that even though income tax certificate was not produced by the bidder, the same could have been required from the bidder after the technical bid was opened. The present is not a case similar on facts. The Technical Bid Check List enumerates the essential technical qualification of the bidders. The bidders were not merely required to produce the pollution certificate, its validity must extend to the last date of submission of bid. The legal fiction created under the Water and Air Acts is intended to save an industry from cessation of work. Moreover, merely because an application for extension of permission to operate has been made, it cannot be assumed that it would in all certainly be granted. In "Rashmi Metaliks Limited 4 and Another vs. Kolkata Metropolitan Development Authority and Others" case the Hon'ble Supreme Court has observed thus;
18. "We think that the income tax return would have assumed the character of an essential term if one of the qualifications was either the gross income or the net income on which tax was attracted. In many cases this is a salutary stipulation, since it is indicative of the commercial standing and reliability of the tendering entity. This feature being absent, we think that the filing of the latest income tax return was a collateral terms, and accordingly the Tendering Authority ought to have brought this discrepancy to the notice of the appellant Company and if even thereafter no rectification had been carried out, the position may have been appreciably different.................."
6. The learned Senior Counsel for the petitioner submits that difference in price bid of the lowest bidder and the price quoted by the petitioner would be in crores and therefore, a direction may be issued to the respondents for opening the price bid of the petitioner. It is submitted that even otherwise also, participation of the petitioner in the price bid would be in the public interest. The contention is liable to be rejected. Whether there would be loss to public exchequer by disqualifying the petitioner in the technical bid is a question which is in the realm of speculation. A bidder which is not qualified in terms of Tender cannot be permitted to participate in price bidding on a spacious plea that its participation would bring healthy competition and may be in the public interest because the disqualified bidder may put a lower bid. Moreover, I am of the opinion that this Court has no 5 power to direct the respondents to open the price bid of a disqualified bidder.
7. By filing supplementary affidavit, it has been brought on record that the pollution control certificate has been issued to the petitioner on 05.05.2015 which is valid w.e.f 01.01.2015. The learned Senior counsel for the petitioner has submitted that since the pollution control certificate issued on 05.05.2015 would cover the period when Etender notice was issued, the petitioner must be held qualified in technical bid. As noticed above, the tender document itself mentions that a bidder must have a "valid pollution certificate". I am of the opinion that the petitioner must be held to be disqualified for the reason that the tender notice was issued on 04.03.2015 and the technical bid was opened on 27.03.2014 whereas, the pollution certificate has been issued on 05.05.2015 only.
8. In the result, the writ petition stands dismissed.
(Shree Chandrashekhar, J.) Tanuj/ A.F.R.