Gujarat High Court
Goodwill vs State on 6 October, 2008
Author: Mohit S. Shah
Bench: Mohit S. Shah
Gujarat High Court Case Information System
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SCA/1182820/2008 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 11828 of 2008
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GOODWILL
ADVANCE CONSTRUCTION CO. - Petitioner(s)
Versus
STATE
OF GUJARAT & 4 - Respondent(s)
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Appearance :
MR
KG SUKHWANI for Petitioner(s) : 1,
MR APURVA
DAVE, AGP for Respondent(s) : 1,
NOTICE SERVED BY DS for
Respondent(s) : 1 -
5.
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CORAM
:
HONOURABLE
MR. JUSTICE MOHIT S. SHAH
and
HONOURABLE
MS.JUSTICE H.N.DEVANI
Date
: 06/10/2008
ORAL ORDER
(Per : HONOURABLE MR. JUSTICE MOHIT S. SHAH) The facts giving rise to this petition under Article 226 of the Constitution are that the respondents invited tenders for constructing Canal Syphon Across River Saraswati at Ch. 247.805 k.m. of Sujlam Suflam, Spreading Canal at Kherava, Mehsana. The tender conditions, inter alia, read as under :-
10.0 Earnest Money Deposit (EMD):
(i) Earnest Money Deposit (EMD) for the work. The Earnest money deposit shall be drawn in favour of the Executive Engineer, Sujalam Suflam Dn. No.2, Visnagar and shall be in the form of :
Fixed deposit receipt, deposit at call receipt or account payee demand draft amounting to Rs.21.00 lacs from any Nationalised Bank.
(ii) Demand Draft for EMD & Tender fee shall be submitted in electronic format only through online (by scanning) while uploading the bid. This submission shall mean that EMD & tender fee are received for purpose of opening the bid. Accordingly offer of those shall be opened whose EMD & tender fee is received electronically. However for the purpose of realization of D.D. bidder shall send the D.D. in original through personally in sealed cover so as to reach to Executive Engineer, Sujalam Suflam Dn. No.2, Visnagar before date 18.09.2008 upto 18.00 hrs. Penaltative action for not submitting D.D. in original to E.E. by bidder shall be initiated. D.D. for Exemption Certificate is not necessary. However, Exemption Certificate shall have to be submitted electronically through online.
Any documents in supporting of tender bid shall be submitted in electronic format only through online (by scanning etc) & hard copy will not be accepted separately.
(iii)Cheque shall not be accepted.
(iv) Valid EMD exemption certificate shall be accepted. ... ... ... ...
2. The petitioner herein submitted EMD in the form of D.D. for a sum of Rs.21 lacs from a nationalised bank. In the present petition, the petitioner has prayed for a direction to the respondents to open the bids of only those bidders who have furnished EMD of Rs.21 lacs by way of FDR or DD of a nationalised bank and not to open price bids of bidders who have not furnished the EMD of Rs.21 lacs in the form of FDR or DD of a nationalised bank.
3. While issuing notice on 23.09.2008, the respondents were directed not to open the price bids of the bidders who had not paid or deposited the EMD.
4. In response to the notice, affidavit-in-reply has been filed by the Superintending Engineer, Sujlam Suflam, Circle No.2, Kherava, Mehsana pointing out that the tender conditions permitted furnishing EMD either in the form of DD or FDR of a nationalised bank or valid EMD Exemption Certificate. It is further stated that at the pre-bidding conference held on 10.09.2008, a clarification was made that DD or FDR shall be of a nationalised bank because the respondent authorities wanted to make it clear that FDR or DD of a co-operative bank shall not be accepted. It is specifically stated in the reply affidavit that the respondent authorities never intended to do away with sub-clause (iv) of Clause 10 stating that valid EMD Exemption Certificate shall be accepted.
5. Mr Sukhwani for the petitioner has submitted that since sub-clause (i) specifically provided that FDR or DD shall be from any nationalised bank, there was no need for any clarification and that the clarification was issued on 10.09.2008 only because one of the bidders had inquired whether EMD Exemption Certificate shall be accepted or not.
6. The minutes of the pre-bid meeting held on 10.09.2008 are produced at Annexure-B to the petition and the relevant item reads as under :-
Points Clarification (3) Provision for form of EMD MENTIONED A at differs.(3)
FDR or DD of Nationalised Bank.
A bare perusal of the above item clearly indicates that there was no reference to EMD Exemption Certificate and therefore, it can never be contended that the respondent authorities had done away with valid EMD Exemption Certificate as one of the acceptable forms of EMD.
7. The learned counsel for the petitioner, however, submitted that it would amount to discrimination if the bidders submitting DDs or FDRs are required to give such EMD amounting to Rs.21 lacs, but Exemption Certificate can be obtained by depositing Rs.7.50 lacs.
8. It was open to the petitioner also to submit a valid EMD Exemption Certificate. The petitioner having himself furnished EMD in the form of DD of Rs.21 lacs from a nationalised bank cannot now be permitted to make any grievance against acceptance of tenders with valid EMD Exemption Certificate as per sub-clause (iv) Clause 10 of the tender conditions.
9. Mr Sukhwani for the petitioner relied on the decision of a learned Single Judge of this Court in Senior Regional Manager, FCI Vs. Sunil Agencies, Kutch, 2003(2) GLR 1020 in support of the contention that there has to be strict compliance with the tender conditions and that the variation is not permissible even in case of the lowest bidder.
10. That was a case where the tender conditions required DD of a scheduled bank and the concerned lowest bidder had submitted DD of a non-scheduled bank.
In the facts and circumstances of the present case as indicated earlier, the tender conditions did permit acceptance of valid EMD Exemption Certificate and therefore, the decision cited on behalf of the petitioner does not advance the petitioner's case any further.
11. On the contrary, in M/s.
G.J. Fernandez Vs. State of Karnataka, AIR 1990 SC 958, the Apex Court has held that the rule of invalidation of grant of contract on account of relaxation of pre-qualification does not readily apply where attempt of applicant is to gain immunity from competition.
In the first place, the petitioner has not made out any case of relaxation as discussed above. Secondly, what the petitioner is seeking by invoking writ jurisdiction of this Court is to gain immunity from competition with those who submitted valid EMD Exemption Certificates. As pointed out by Mr Apurva Dave, learned AGP for respondent No.1, out of 10 tenderers, 8 parties have submitted EMD in the form of valid EMD Exemption Certificate and therefore, if the petitioner's case is accepted, there will be only two bidders left in the fray. In view of this factual position also, it is obvious that the petitioner is seeking to gain immunity from competition with as many as 8 other bidders.
12. In view of the above discussion, we do not find any merit in the petition and the petition is, therefore, summarily dismissed.
Ex-parte ad-interim relief granted earlier stands vacated.
(MOHIT S. SHAH, J.) (HARSHA N.DEVANI, J.) mrpandya* Top