Gujarat High Court
Meka Dredging Co Pvt Ltd vs Gujarat Maritime Board & 2 on 2 May, 2016
Author: Akil Kureshi
Bench: Akil Kureshi, A.Y. Kogje
C/SCA/6335/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 6335 of 2016
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MEKA DREDGING CO PVT LTD....Petitioner(s)
Versus
GUJARAT MARITIME BOARD & 2....Respondent(s)
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Appearance:
MR VIJAL P DESAI, ADVOCATE for the Petitioner(s) No. 1
MR PR NANAVATI, ADVOCATE for the Respondent(s) No. 1 - 2
MS AVANI S MEHTA, ADVOCATE for the Respondent(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 02/05/2016
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. Petitioner has challenged the action of the respondent-Gujarat Maritime Board in rejecting petitioner's tender on the ground that the copy of the tender and the accompanying documents were not received by the GMB in time.
2. Brief facts are as under:-
2.1 GMB required a suitable agency for the work of dredging by cutter suction dredger in sea water. For such purpose, a public tender was invited by publishing Page 1 of 6 HC-NIC Page 1 of 6 Created On Wed May 04 03:55:58 IST 2016 C/SCA/6335/2016 ORDER notice on 18.02.2016. The important tender dates were as under:-
I. Did document download started from
18.02.2016.
II. Bid document download ended on 18.03.2016.
III. Pre-bid meeting - 04.03.2016.
IV. Last date and time for uploading bid -
18.03.2016 up to 18:00 hrs.
V. Submission of tender fees with documents
through RPAD /Speed Post only in the
office of Marine Engineer - from
19.03.2016 to 28.03.2016 during office
hours only.
2.2 In terms of this timetable thus, e-tender had
to be filed latest by 18.03.2016. The tender fee along with documents in hard copy had to be supplied between 19.03.2016 to 28.03.2016 during office hours.
Importantly, mode of sending such documents was through RPAD or Speed Post only.
2.3 Undisputed facts are that the petitioner filed the said tender within the time prescribed. The petitioner also dispatched necessary documents along with Page 2 of 6 HC-NIC Page 2 of 6 Created On Wed May 04 03:55:58 IST 2016 C/SCA/6335/2016 ORDER tender fees through Speed Post on 22.03.2016. According to the petitioner, the post parcel had also reached Jamnagar office of the Postal Department on 24.03.2016. The Postal Department unfortunately did not deliver the parcel till 28.03.2016. The parcel was delivered to the GMB on 29.03.2016 at around 10:00 am, i.e. before the time for opening the tenders. However, the GMB did not accept the parcel and rejected petitioner's bid on the ground that the tender documents were not received till the last date provided for such purpose.
3. Under the said circumstances, we had issued notice on 18.04.2016 and prevented GMB from finalizing the tender. GMB has appeared and filed reply. Postal Department has also appeared through Counsel.
4. The stand of GMB is that the petitioner did not fulfill the essential condition of the tender. The tender documents which were received after the last date could not be accepted. In this context, Counsel relied upon the decision of Division Bench of this Court in case of J.Kumar Infra Projects Ltd., reported in 2011 (2) GLR, page No.977. He submitted that the work is time bound.
5. Learned Counsel Mr.Avani Mehta for the Postal Department submitted that the server of the Postal Department at Jamnagar was down for nearly five days Page 3 of 6 HC-NIC Page 3 of 6 Created On Wed May 04 03:55:58 IST 2016 C/SCA/6335/2016 ORDER which resulted in delay in delivering the parcel. She agreed that the petitioner had sent the parcel through Speed Post on 22.03.2016.
6. The facts are not in dispute at all nor are the conditions of the tender. As per the tender conditions, after filing the e-tender, the bidder would have to send the tender fee as well as the documents in hard copy, which would have to be delivered to the GMB during office hours between 18.03.2016 to 28.03.2016. Compulsorily, the mode of dispatch would either be RPAD or Speed Post. In the present case, though the petitioner had dispatched the parcel through speed post on 22.03.2016, the Postal Department could not deliver the same till 28.03.2016. It was only delivered in the morning hours of 29.03.2016.
7. Compliance of the conditions of the tender would, therefore, have to be seen in such peculiar facts. It is undoubtedly true that filing of tender documents in time is an essential condition, as was held by the Division Bench of this Court in case of J.Kumar Infra Projects Ltd (supra). However, in the said case, the petitioner, after uploading the e-tender had not delivered the tender documents through prescribed mode. He had, instead, sent personal messenger with envelop for delivery, which was refused by the inwarding office. The facts in the said case are thus substantially different. Page 4 of 6 HC-NIC Page 4 of 6 Created On Wed May 04 03:55:58 IST 2016 C/SCA/6335/2016 ORDER The question of compliance with the said condition, therefore, would have to be seen in the context of the present case.
8. The conditions prescribed by GMB in connection with filing of tender documents have three essential parameters. First is that such documents had to be sent strictly between 18.03.2016 to 28.03.2016, a reasonably small window. Secondly, it had to be sent through only one of the two modes, viz. Registered Post or Speed Post and any other mode was completely prohibited. Thirdly, technical bids would be opened thereafter on 29.03.2016. These conditions would leave a person sending tender documents through the Postal Department well in time completely at the mercy of the delivery system. If the span for deliver of the documents was sufficiently large, perhaps this issue would not be valid. But, when span is of only 10 days and when the agency dispatching the documents through Speed Post leaving margin of six days, it would simply not be possible to disqualify the agency on the ground that the Postal Department did not deliver the parcel before the last date. More significantly, in the present case, it was the good fortune of the petitioner that the parcel was delivered on the morning of 29.03.2016 before the technical tenders of others were opened.
Page 5 of 6 HC-NIC Page 5 of 6 Created On Wed May 04 03:55:58 IST 2016 C/SCA/6335/2016 ORDER
9. In view of such facts, we hold that the petitioner had fulfilled all the conditions. The petitioner's technical bid would be opened by the GMB. Since the GMB had refused to receive the parcel, the petitioner shall present the same in the original condition with the stamps of the Postal Department before Marine Engineer at Jamangar latest by 04.05.2016 through personal delivery, which shall be accepted by the said authority. We are informed that technical bids of all other tenderers whose tenders were complete in all respects have been opened and processed. If that be so, all that is required to direct the GMB to open and evaluating the petitioner's technical bid. If he qualifies, question of considering petitioner's financial bid would arise.
10. Petition disposed of accordingly.
Direct service permitted.
(AKIL KURESHI, J.) (A.Y. KOGJE, J.) SHITOLE Page 6 of 6 HC-NIC Page 6 of 6 Created On Wed May 04 03:55:58 IST 2016