Bombay High Court
Messrs. B. Himmatlal Agrawal vs Western Coalfields Limited on 10 August, 2010
Author: A.B. Chaudhari
Bench: S.A. Bobde, A. B. Chaudhari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.2533/2010
PETITIONER :- Messrs. B. Himmatlal Agrawal,
A partnership firm, having its office
At 72/A, Krishna House,
S.T. Bus Stand Road, Ganeshpeth,
Nagpur - 440 018, through its Partner,
Shri Brijesh Himmatlal Agrawal.
...Versus...
RESPONDENTS : 1. Western Coalfields Limited,
A Government of India Enterprise,
Through the office of Chief General Manager,
Umred Area, P.O. Umred Project - 441 204,
Tahsil Umred, District Nagpur.
2. Shri Sudhir Manikrao Giradkar
Station Officer (Mining) Umred Area,
Tah. Umred, Distt. Nagpur.
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[Shri M.V. Samarth, Adv. for petitioner]
[Shri S.C. Mehadia, Adv. for respdt. No.1]
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CORAM :- S.A. BOBDE AND
A.B. CHAUDHARI, JJ.
Date of reserving the judgment :- 06.07.2010
Date of pronouncing the judgment :- 10.08.2010
JUDGMENT (PER : A.B. CHAUDHARI, J.)
1. Heard. Rule. Rule returnable forthwith. Heard finally by consent of learned Counsel for the rival parties.
::: Downloaded on - 09/06/2013 16:16:00 ::: wp2533.10.odt 2/62. By the present petition, the petitioner has put to challenge the communications dated 05.05.2010 Annexure-E, 14/17.05.2010 Annexure-H by which the representations made by the petitioner in the matter of compliance of the condition as to furnishing bank solvency certificate in terms of Clause-3.2 (e) of Instructions To Bidders in the tender document stood rejected.
3. Having heard learned Counsel for the parties the only point that arises for our determination is whether in terms of Clause-3.2 (e) of the tender document, the petitioner having submitted bank solvency which had expired by four days and wanted to rectify the defect should have been allowed to do so and whether the said term of furnishing the bank solvency was merely ancillary or subsidiary ?
4. It is not in dispute that as per Clause 3.2- (e) the petitioner was required to submit bank solvency which should be of the date within three months next before the date of tender opening. The bank solvency certificate produced by the petitioner was of the date 8.1.2010, which means the same was invalid by four days before the date of opening, namely, 12.4.2010. It is further not in dispute that the petitioner was all the while insisting for allowing him to remove the said defect by filing a fresh bank solvency certificate but by the impugned communications, his representations were rejected. It is not ::: Downloaded on - 09/06/2013 16:16:00 ::: wp2533.10.odt 3/6 in dispute that earlier respondent No.1 itself had on several occasions allowed several contractors to remove the said defect regarding furnishing bank solvency certificate vide Annexure - L, Annexure-M and Annexure-N. It is also not in dispute that the petitioner has been working as a contractor for respondent No.1 for the last 25 years and the only justification that has been given for not allowing him to remove the said defect is to be found in the following extracted portion from paragraph No.2 of the additional submissions filed by respondent No.1, dated 5.7.2010.
"It is humbly submitted that earlier in Umrer Area also the bidders were asked to remove the minor defects. However, in one of the tender matter an audit objection was raised that the bidder may be asked to give some clarification if required but he cannot be permitted to fill up the lacunas by asking for some documents. Thereafter in view of that internal audit objection in Umrer Area, the bidders have not been asked to submit any document or correct the defect, if any. It is humbly submitted that the object of granting an opportunity to the bidder to fill up such defects was with an intention to permit maximum number of bidders to participate. However, after the said audit objection it was not possible to give such opportunity."::: Downloaded on - 09/06/2013 16:16:00 ::: wp2533.10.odt 4/6
5. Another submission canvassed by Advocate Shri Mehadia for justifying the impugned action is that there is no provision in the tender document to allow removal of defect.
6. Perusal of the above defence taken by respondent No.1 clearly shows that the petitioner was not allowed to remove the said defect only because there was audit objection. The said objection regarding furnishing bank solvency certificate by a certain date cannot be said to be an essential condition of eligibility and in our opinion, is merely ancillary or subsidiary condition. Respondent No.1 without application of mind as to whether the said condition was ancillary clearly ignored the fact that the bank solvency certificate that was furnished was beyond the required period of three months only by four days and that could easily be allowed to be rectified. Respondent No.1 thus erred in merely relying on the audit objection rather than acting according to law. In the case of B.S.N. Joshi and Sons Ltd...Versus...Nair Coal Services Ltd. and others, reported in 2006 (11) Supreme Court Cases 548, the Hon'ble Supreme Court relying on its earlier decision in the case of Poddar Steel Corpn. ...Versus...Ganesh Engg. Works, reported in 1991 (3) Supreme Court Cases 273 held in paragraph No.61 thus.
::: Downloaded on - 09/06/2013 16:16:00 ::: wp2533.10.odt 5/6"61. Law on the similar term has been laid down in Poddar Steel Corpn. V. Ganesh Engg. Works in the following terms : (SCC p. 276, para 6) "6. It is true that in submitting its tender accompanied by a cheque of the Union Bank of India and not of the State Bank clause 6 of the tender notice was not obeyed literally, but the question is as to whether the said non-compliance deprived the Diesel Locomotive Works of the authority to accept the bid. 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 with the condition in appropriate cases.""::: Downloaded on - 09/06/2013 16:16:00 ::: wp2533.10.odt 6/6
7. The above being the position of law, in our opinion, the impugned action of rejecting the representations by the impugned communications was clearly illegal. The submission made by Advocate Shri Mehadia about want of provision in the tender document is hardly relevant in the light of the above discussion. In the result, the petition must succeed. We, thus, make the following order.
ORDER
(i) Rule is made absolute in terms of prayer clause - (a).
(ii) Respondent No.1 is directed to consider the tender of the petitioner after allowing him to rectify the defect regarding submission of the bank solvency certificate.
JUDGE JUDGE
ssw
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