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7. Since the petitioner has not been informed about the reason as to why its bid was not opened, the petitioner has approached this court by way of the present petition seeking the relief noted hereinabove.

8. Mr. N. L. Ramnani, learned advocate for the petitioner, submitted that the petitioner had duly complied with all the requirements set out in the notice inviting tenders and the conditions annexed therewith. Referring to the special instructions annexed along with the tender notice, it was pointed out that condition 8 thereof says that all the documents which have been called for as well as the demand draft for tender fee and fixed deposit receipt for earnest money deposit are required to be scanned and mandatorily submitted online. Moreover, the documents referred to in the tender that have been called for, are required to be self attested and the original demand draft and fixed deposit receipt shall all be required to be sent within time. It was submitted that therefore, the first part of the condition wherein the documents as well as demand draft for tender fee and fixed deposit receipt for earnest money deposit are required to be scanned and submitted online is mandatory, whereas the second part C/SCA/19465/2019 JUDGMENT of the condition is not mandatory. It was contended that once the scanned copy of the demand draft is placed online, even a xerox copy of the same is sufficient for the first respondent municipality to encash the demand draft. Hence, non-receipt of the original demand draft does not come in the way of the respondent municipality from encashing the demand draft, and hence, also the condition of submitting the original demand draft cannot be construed to be mandatory.

8.1 It was contended that the petitioner had duly forwarded the demand draft along with the other documents and that the submission made on behalf of the respondent municipality that the demand draft was not enclosed along with the other documents is not correct. It was urged that petitioner had no reason to withhold the demand draft once it had obtained the same, more so, considering the fact that the fixed deposit receipt of more than Rs.6,00,000/- towards the earnest money deposit had already been submitted. It was submitted that some of the officers of the respondent municipality had manipulated things so as to throw the petitioner out of zone of consideration and that the allegation regarding non submission of tender fee is absolutely vague and brought up with some ulterior motive.

10. Mr. G. M. Joshi, Senior Advocate, learned counsel for the respondent No.5 - successful tenderer, invited the attention of the court to the communication dated 09.10.2019 of Design Point, Government Approved Panel Engineer, to submit that this is an independent agency provided for the purpose of handling the tender process and they have nothing to do with the Chief Officer, the municipality or any of the bidders. On opening the physical tender documents, observations have been made that three agencies remained in the fray, and that at that time no one knew the rates offered by the bidders. It was submitted that the decision that the petitioner had not submitted the original demand draft within the time provided and, therefore, stands disqualified, is taken by an independent agency on the basis of the documents. Reference was made to condition 8 of the special instructions annexed along with the tender notice, to submit that it provides that over and above uploading scanned copies of all the documents including demand draft for tender fee and fixed deposit for earnest money deposit being mandatory, the condition further provides that the documents specified in the tender which are called for within the prescribed time shall all be required to be sent after self attestation as well as the original demand draft and fixed deposit receipt. It was pointed out that the condition further provides that physical submission made beyond the prescribed period shall not be taken into consideration C/SCA/19465/2019 JUDGMENT and that such physical submission cover shall be sent back by the municipality to the agency, which the agency shall take note. It was submitted that the condition for furnishing the original demand draft is mandatory as it provides for a consequence for non compliance thereof. It was urged that the decision regarding disqualification of the petitioner was taken by an independent body and hence, there is no question of any ill motive being attributed to such agency. It was submitted that when the words are mandatory, the condition is interpreted as essential. To bolster his submission, the learned counsel placed reliance upon the decision of the Supreme Court in Shobikaa Impex (P) Ltd. and another v. Central Medical Services Society and others, (2016) 16 SCC 233, wherein the court has held thus:

19. Examining the facts of the present case in the light of the above decision, condition 8 of the special instructions not only says that the original demand draft of the tender fee has to be enclosed with the documents within the prescribed time, but it also provides for the consequence of non-compliance thereof, namely that physical submission made beyond the prescribed period shall not be taken into consideration. Thus, condition 8 even on a standalone basis, indicates that furnishing the original tender fee demand draft with other documents within the prescribed time is an essential condition incorporated in the instructions to bidders, non-compliance whereof would entail rejection of the bid. Furthermore, condition 11 of the special instructions provides that the tenders which are non-compliant of the above instructions shall be liable to be set aside, which again is indicative of the fact that the instructions set out above condition 11 are essential conditions. The contention that submission of original demand draft is not an essential condition therefore does not merit acceptance.