w w w . L a w y e r S e r v i c e s . i n



M/s. Aditya Construction Company (J.V.), through its power of attorney, Nilesh R. Borekar v/s State of Maharashtra, through the Secretary, Water Resource Department, Mantralaya & Others

    Writ Petition No. 2942 of 2021

    Decided On, 10 March 2022

    At, In the High Court of Bombay at Nagpur

    By, THE HONOURABLE MR. JUSTICE SUNIL B. SHUKRE & THE HONOURABLE MR. JUSTICE A.L. PANSARE

    For the Petitioner: S.K.Mishra, Senior Counsel with V.S. Mishra, Kabir Jhams, Advocate. For the Respondents: R2 to R5, M.G. Bhangde, R8, J.T. Gilda, Senior Counsels with P.B. Patil, A.J. Gilda, R7, N.V. Kalwaghe, Advocates, N.R. Patil, AGP.



Judgment Text

Sunil B. Shukre, J.

1. Heard. Rule. Rule made returnable forthwith. Heard finally by consent of the parties.

2. The Petitioner is a Joint Venture between the Petitioner entity and one M/s.Bhagwat Prasad Sharma,Gwalior, both registered partnership firms with the Petitioner, being a lead member of the Joint Venture.

3. The Respondent No.2 Corporation floated E-Tender vide Tender Notice No.2/2021-2022 dated 06/07/2021 inviting bids for awarding the contract of “Construction of Balance Earth Work of Dam upto District Chandrapur” with an estimated cost of Rs.71,04,73,961/- (Seventy-One Crores Four Lakhs Seventy-Three Thousand Nine Hundred and Sixty-One Only). The Petitioner being of the opinion that it fulfilled the eligibility criteria and all the requirements of the tender notice, felt that it was eminently suited for award of the contract and, therefore, it submitted its technical as well as financial bid on the web portal on 27th July 2021. The Petitioner contends that after submission of its bid, it reliably learnt that entire tender process was being carried out under political dictum and decision had already been taken as to whom the work be awarded.

4. The Petitioner submits that its suspicion proved to be well founded and the Petitioner learnt vide Technical Bid Summary Report dated 03rd August 2021 that the technical bid of the Petitioner was rejected and the Petitioner was disqualified from getting its financial bid opened. The Petitioner submits that the Summary Report revealed that technical offer of the Petitioner was rejected on 5 principle grounds namely (i) the undertaking in the form prescribed in Appendix J was given on a stamp paper which was more than six months old; (ii) the Geo-Tagging of all the locations was not completed, (iii) Undertaking-1 submitted by the Petitioner was false; (iv) Petitioner did not fulfill the essential condition of completion of similar type of work; and, (v) the Petitioner failed to fulfill the criteria of completion of minimum quantities of work namely construction of embankment and structural scheme.

5. According to the Petitioners, the aforestated grounds are patently illegal and none of them is true on facts and in law. The Petitioner submits that the entire tender process undertaken by Respondent No.2 is vitiated by nepotism and favouritism and has been carried out under political pressure and, therefore, it deserves to be interfered with by quashing and setting aside the Summary Report in question and issuing necessary declaration and directions in the matter.

6. A common reply has been filed by Respondent Nos.2,3,4 and 5 and separate reply has been filed by Respondent No.8 whose financial bid has been found to be of the lowest order. Remaining Respondents including Respondent No.1 – State of Maharashtra, have not filed any reply, there being neither any relief claimed against these Respondents nor there being any possibility of these Respondents getting affected by whatever the result of the Petition be.

7. Respondent Nos.2,3,4 and 5 have taken a preliminary objection to the maintainability of this Petition stating that Petitioner has not approached this Court with clean hands. They submit that the Petitioner has filed an undertaking falsely stating that at no point of time the Petitioner was penalised for any work carried out nor was blacklisted by any Government department previously and whereas the true position is that the Petitioner by the Resolution passed in the meeting held on 22nd June 2019 of the Executive Council of Maharashtra Water Conservation Corporation, has been prohibited from participating in any tender process of the Board and that the Petitioner has also been penalised by the office of Nagpur Irrigation Division and further penalised by the office of the Executive Engineer, Lower Wardha, Canal Division, Wardha.It is also stated that the order of the blacklisting of the Petitioner was challenged by the Petitioner by filing a Writ Petition No.1940/2021 in which by the order passed on 15th June 2021, ad-interim stay to the blacklisting order was granted by the Division Bench of this Court and, therefore, in the undertaking submitted by the Petitioner it was necessary for the Petitioner to also mention the fact of grant of ad-interim stay by the Division Bench of this Court. But, it is submitted that the Petitioner concealed these relevant facts. They also submit that Petitioner has misled this Court into believing, prima facie, that in view of Section 54 of the Indian Stamp Act it was not necessary that a stamp paper be used within six months from the date of its purchase.

8. It is also submitted by Respondent Nos.2, 3, 4 and 5 that all the grounds disclosed in the Summary Report are factually and legally correct and,therefore, there is no scope left for making any interference by this Court in the tender process. Allegations made by the Petitioner regarding indulgence in nepotism and favouritism and acting under political pressure are also denied by these Respondents.

9. The reply filed by Respondent No.8 is also on similar lines as the one filed by Respondent Nos.2, 3, 4 and 5. It is also stated that each and every condition which has not been fulfilled or violated by the Petitioner as disclosed in the Summary Report was the essential and mandatory condition of the tender process in question and, therefore, the Petitioner has been rightly disqualified from taking part in the further round of opening of financial bids.

10. Shri M.G.Bhangde, learned Senior Advocate for Respondent Nos.2 to 5 and Shri J.T. Gilda, learned Senior Advocate for Respondent No.8, both contend that the Petitioner has not approached this Court with clean hands, has suppressed material facts and has misled this Court at the time of obtaining an interim-relief from this Court and, therefore, on these grounds themselves the Petition deserves to be dismissed. They rely upon the cases of Dalip Singh v/s. State of Uttar Pradesh & ors. (2010) 2 Supreme Court Cases 114)and the case of K.D.Sharma v/s. Steel Authority of India Limited & ors. (2008) 12 Supreme Court Cases 481).

11. Learned Senior Advocate for Respondent No.8 points out, in particular, that the Petitioner was blacklisted by Maharashtra Water Conservation Corporation, Aurangabad and was also penalised by Irrigation Department of the State of Maharashtra and yet the Petitioner submitted a false undertaking that he was neither penalised nor blacklisted by any Government Department previously. Shri Gilda and Shri Bhangde, learned Senior Advocates, both submit that provisions of Section 54 of Indian Stamp Act were not applicable to the undertaking (Appendix-J) submitted by the Petitioner which was on an expired stamp paper of Rs.500/-. They submit that expired stamp papers are dealt with by the provisions contained in Section 52B of the Maharashtra Stamp Act, 1958 (for short ‘the Act, 1958’) and not by Section 54 of the Indian Stamp Act. They further submit that the Petitioner never fulfilled essential and mandatory eligibility criteria relating to Geo-Tagging, completion of similar work and requisite experience.

12. Shri Gilda, learned Senior Advocate adds that the Petitioner failed to bring to the notice of this Court the Corrigendum issued to the tender document in respect of “experience of similar type of work” whereby the earlier condition regarding construction of earth work for dam or barage etc., either completed or underway by the Contractor has been modified so as to confine it to only completion of such work. He submits that if this Corrigendum had been brought to the notice of this Court by the Petitioner earlier, it would have enabled the Court to examine the correctness of the submission that the Petitioner had fulfilled one of the essential criteria of having experience of similar type of work (clause 3.2) and then this Court would have found that the submission was incorrect.

13. The preliminary objection taken to the maintainability of this petition is strongly repelled by learned Senior Advocate for the Petitioner. The learned Senior Advocate for the Petitioner submits that the main grounds on which the preliminary objection has been taken, at the most, could be considered to be curable defects and could have been removed, had an appropriate opportunity been granted to the Petitioner. He further submits that the Petitioner did fulfill all the essential conditions of the Tender document and, therefore, there was no way that the tender of the Petitioner could have been declared as non-responsive.

14. As there is a preliminary objection taken to the maintainability of this petition, it would be necessary for us to first deal with the preliminary objection. Further consideration of other rival arguments which dwell on the merit of the issue raised herein would depend upon giving by us our answer to the preliminary objection.

15. The preliminary objection is two fold. Firstly, it is stated that the Petitioner submitted an undertaking in the form prescribed in Appendix-J on a stamp paper that was, being more than six months old, rendered invalid by virtue of Section 52 B (b) of the Act, 1958. Secondly, it is submitted that the Petitioner submitted a false Undertaking-1 and suppressed from this Court the material facts of it being black-listed and penalised earlier.

16. About the use of invalid stamp paper, learned Senior Advocate for the Petitioner does not dispute the use of the expired stamp paper for submitting an undertaking in the form prescribed as per Appendix-J. But he contends that the officers of Respondent No.2 – The Vidarbha Irrigation Development Corporation (for short ‘VIDC’), Nagpur were the officers in-charge of public office before whom this instrument (Undertaking vide Appendix-J) which was chargeable with duty was produced. He further submits that they were, therefore, under a duty under Section 33 of the Act, 1958 to impound the same and collect the stamp duty as well as penalty payable in respect of the same instrument so that the bar of Section 52 B(b) read with Section 34 of the Act, 1958 could be overcome. He submits that in a case before Bench of learned Single Judge (as his Lordship then was), BOI Finance Ltd.Plaintiff v/s. Liquidator of Siddharth Engg. Pvt. Ltd. & others (AIR 2001 Bombay 397)a similar invalid document on account of expiry of the stamp paper on which the instrument was written down was produced before the Court and a direction was issued to the Prothonotary and Senior Master to examine and impound the instrument and thereafter to take necessary steps in accordance with law. He further submits that in that case the Prothonotary and Senior Master had then collected duly the stamp duty as well as penalty payable in respect of the value of the instrument and thereafter, the instrument was considered as duly stamped. Learned Senior Counsel submits that similar are the facts of this case and, therefore, it cannot be said that submission of undertaking on an expired and invalid stamp paper was not a curable defect and, therefore, it was not violative of any essential condition of the Tender document.

17. Shri Bhangde, the learned Senior Advocate for Respondent Nos.2 to 5 and Shri Gilda, the learned Counsel for Respondent No.8 submit that the said case of BOI Finance Ltd. has no application to the facts of the present case.

18. In our view, the learned Senior Advocates for Respondent Nos.2 to 5 and Respondent No.8 respectively are right in their dissent. Clause 2.23.0 (xviii) required a tenderer to submit alongwith the Tender document, a signed original affidavit of undertaking (Appendix-J) on Rs.500/- stamp paper at the time of signing of agreement but it also required a tenderer to upload the scanned copy of this undertaking in Envelope No.1. Envelope No.1 related to technical bid of the tenderer and Envelope No.2 was for financial bid of the tenderer. Respondent Nos.2 to 5, while scrutinizing the documents submitted in Envelope No.1, found that scanned copy of undertaking in form prescribed vide Appendix-J was not on a valid stamp paper in the sense that the undertaking was signed on a date which was after six months from the date of purchase of the stamp paper. This stamp paper having been rendered invalid because of expiry of period of more than six months, from the date of its purchase till the date on which it was signed, is not in dispute. The dispute is about following of procedure contained in Section 33 of the Act, 1958. Now, if we read carefully the Condition in clause 2.33.0, we would find the reason for expressing our agreement with the submission of learned Senior Advocates for Respondent Nos.2 to 5 and Respondent No.8. This Condition – Condition No.2.33.0 prescribes that if the various requirements as specified by Section III and IV are not fulfilled/uploaded or verification of the same (sic documents) do (sic does) not meet the requirements, the tenderer’s financial bid will not be considered for further action. The scanned copy of the undertaking in form vide Appendix-J clearly showed that it was on a stamp paper rendered invalid and, therefore, it did not meet the requirement of Clause 2.23.0 (xviii) which is a condition contained in Section III of the Tender document.

19. At the time of consideration of financial bid here, we must say, the issue was not of enforceability of the undertaking but was of submission of the undertaking in a form prescribed as per Appendix-J and on a stamp paper of Rs.500/-. It meant that the undertaking was to be submitted on a stamp paper which was complete in its aspect of payment of stamp duty or which was already charged with duty and not on a stamp paper which was rendered invalid and, therefore, became a document which was as good as one not charged with any duty. The former aspect of the enforceability of the undertaking could be met by following the procedure given in Section 33 of the Act, 1958. The later aspect of submission of an undertaking on a stamp paper of Rs.500/- could be met by only submitting an undertaking on valid stamp-paper or otherwise, it would be an instrument written down on a stamp-paper which would indicate, not the payment of stamp-duty, but non-payment of stamp-duty requiring it’s payment together with payment of penalty at appropriate time. Any document written on an expired or invalid stamp-paper is indicative of payment of no stamp-duty. It is a different matter that stamp-duty with penalty can be paid after impounding of the document. But, such an occasion would arise only at the time of enforcing of the document or the undertaking and not at the time of submitting such a document in fulfillment of some tender condition. When a tender condition requires an undertaking to be submitted on a stamp-paper of Rs.500/-, it only means that the undertaking submitted is on a valid stamp-paper which indicates payment of stamp duty of Rs.500/-. If the tender condition requiring submission of an undertaking on a stamp-paper of certain value is not understood in this way, many of the tender processes would get embroiled in legal tangle and would, linger on for longer time, thereby shifting the focus from completion of work to resolving the legal mesh. Power of judicial review exists for ensuring transparency, fair-play and reasonableness (Tata Cellular v/s. Union of India) (1994) 6 SCC 651)in a tender matter, and not for turning it into a legal platform where parties, as if they are adversaries before Court, should engage themselves in some intricate legal debate.

20. So, what mattered here was the fulfillment of aspect of submission of the undertaking on a valid stamp-paper of Rs.500/- and not the aspect of enforceability of the undertaking, as the latter aspect related to later stage, if any.

21. In the case of BOI Finance Ltd. (supra) the question involved was of enforceability of guarantee which question has not arisen in the present case and question is only confined to adherence to the Condition of clause 2.23.0 (xviii) of the Tender document and that being not followed by the Petitioner, in our respectful submission, no assistance can be sought by the Petitioner from the said case of BOI Finance. We, thus, find that the Petitioner has committed a clear breach of the Condition of Clause 2.23.0 (xviii) and it being one of the essential requisites for opening of the financial bid, the declaration of technical bid of the Petitioner by Respondent Nos.2 to 5 as nonresponsive cannot be faulted with and this would mean that the petition needs to be dismissed.

22. But, we also need to answer a few questions, they having been raised by learned Senior Advocates for the respondent nos.2 to 5 and respondent no.8 before we take the final call. They relate to misleading this Court and suppressing material facts from this Court.

23. The Petitioner has been accused of misleading this Court on the ground that the Petitioner persuaded this Court in recording a primafaice finding in favour of the Petitioner by placing reliance upon the case of Thiruvendgadam Pillai v/s. Navaneethmmal & others (2008(4) SCC 530)thereby rendering this petition as not maintainable. Though the learned Senior Advocates for Respondent Nos.2 to 5 and Respondent No.8 would like this Court to uphold their this contention, we respectfully expostulate. The learned Senior Advocate initially appearing for the Petitioner did put forward a proposition of law that as per Section 54 of the Indian Stamp Act, 1899, a stamp paper is not rendered useless, as the purpose of Section 54 of the Indian Stamp Act is only to enable an individual to claim refund of the value of unused stamp paper and that it has got no relation with the use of the stamp paper within six months from the date of purchase. The learned Senior Advocate then appearing for the Petitioner did rely upon the said case of Thiruvendgadam Pillai for the said postulate of law. But, sometimes, it does happen that a Senior Counsel is shown some case law at the eleventh hour by the instructing Counsel and believing in good faith in those instructions, a Senior Advocate may accept the suggestion given to him and, therefore, may use that suggestion to develop his argument further. Therefore, unless it is reasonably shown that reliance on a case law not applicable to the facts of the case made by the learned Senior Advocate is deliberate, fully knowing that the law does not apply to the facts of the case and yet a positive submission is made, it cannot be said that the Petitioner has approached the Court with dirty hands. In this case, there is nothing on record to show that any such deliberate attempt was ever made by the Petitioner or by his instructing Counsel and, therefore, the argument canvassed on behalf of Respondent Nos. 2 to 5 and Respondent No.8 that making of a proposition of law by placing reliance upon a case not applicable to the facts of the present case itself amounted to playing a dirty game by the Petitioner cannot be accepted. The argument is, therefore, rejected. But, we must make it clear here that rejection of the said argument would not in any manner dilute our finding that the Petitioner has failed to submit an undertaking in form prescribed vide Appendix-J in a manner required under clause 2.23.0 (xviii) of the Tender document, as essential condition, and thus has committed a breach of one of the essential conditions of the Tender document.

24. The next question is of suppression of material facts by the petitioner. Respondent Nos. 2 to 5 and Respondent No.8 have charged the Petitioner with misconduct of suppression of material facts resulting from submission of false Undertaking-1. Learned Senior Advocate for the Petitioners has submitted that if the Respondent Nos.2 to 5 felt that the information given by the Petitioner in Undertaking-1 was wrong, the Respondents could have given one more opportunity to the Petitioner for submitting a correct undertaking as the information given by the Petitioner could be considered to be a mistake only. He placed his reliance upon the G.R. dated 7th March 2019.

25. In order to better appreciate the rival arguments, it would be necessary for us to first know about the contents of the Undertaking-1. Copy of Undertaking-1 has been filed by Respondent Nos.2 to 5 alongwith their reply. The relevant portion of this Undertaking is reproduced as below:-

“We M/s. Aditya Construction Company, Nagpur Contractor declare that during last 5 years of the date of this undertaking,

1. As a contractor, we have never been penalized for any work carried out by us, nor we have been blacklisted by any Govt. Deptt. previously.

2. We have not abandoned any work for reasons attributed to us.

3. We have not delayed completion of any work for reason attributed to us. We undertake that the above information is true to the best of our knowledge & belief and as per records, and nothing is hidden/concealed, false or misleading. No further information remained to be supplied.

We fully aware that our tender will be treated as non responsive and will be summarily rejected at any time, if above information is found to be false and misleading, by the concerned authority.”

It is clear that a tenderer is required to give true and correct information in respect of following points:

(a) As a contractor, he or it has never been penalised for any work carried out nor has ever been blacklisted by any Government Department previously.

(b) As a Contractor, he or it has not abandoned any work for reasons attributable to the Contractor.

(c) As a Contractor, he or it has never delayed completion of any work for reasons assignable to the Contractor.

There is also a clause in this undertaking itself which when accepted would bind a tenderer to abide by the decision of summary rejection of the bid as non-responsive if the above referred information is found to be false and misleading. This condition of the undertaking has rendered the argument of learned Senior Advocate for the petitioner that if fault or mistake is noticed in the undertaking, further opportunity to correct the mistake should have been given as per the G.R. dated 7th March, 2019 as insignificant. Now, let us consider the effect the undertaking submitted by the petitioner had on its tender.

26. The Petitioner has in the above referred undertaking categorically stated that the Petitioner was neither penalised nor blacklisted nor abandoned any work for reasons attributable to it nor delayed completion of any work for reasons attributable to it. This undertaking, however, was contrary to the factual scenario. This undertaking was submitted on 20th July 2021. The Petitioner was blacklisted from submitting tenders floated by the Maharashtra Water Conservation Corporation as per its order dated 22nd June 2019. It was communicated to the Executive Engineer on 1st July 2021. This fact was well known to the Petitioner as it’s blacklisting was challenged by the Petitioner before this Court by filing a Writ Petition No.1940/2021 wherein the Petitioner obtained an interim stay to the effect and operation of the said decision on 15th July 2021, about five days prior to submission of Undertaking-1. The Petitioner in Undertaking-1 made a categorical statement that it was never penalised nor was it blacklisted by any Government Department previously. The Petitioner ought to have stated in the Undertaking that it was blacklisted by the Water Conservation Corporation but the effect and operation of the decision of Water Conservation Corporation had been stayed by this Court until further orders. Staying the effect and operation of any decision is different from quashing and setting aside of the decision. In the former case, the decision remains but its implementation is stayed and in the latter case, the decision itself goes away. In this case the decision had not been set aside and, therefore, the Petitioner could not have undertaken in a blanket manner that it was not blacklisted by any Government department previously. The Petitioner suppressed this fact rather made a false statement altogether.

27. The undertaking submitted by the Petitioner also contained a statement that Petitioner was never penalised for any work carried out by it for any Government department previously. This statement again was false. The letter of Executive Engineer, Lower Wardha Canal Division dated 11th June 2021 addressed to the Petitioner stated that as per the agreement, penalty of Rs.1000/- per day was being imposed upon the Petitioner till 30th June 2021 and another letter dated 16th December 2020 addressed to the Petitioner by the office of the Executive Engineer, Medium Project Division, Gondia disclosed that the Petitioner was imposed with penalty of Rs.15,000/- per day. The Petitioner, however, did not incorporate the facts relating to imposition of these penalties in the undertaking and in the memo of this Petition. The Petitioner straightaway stated in the undertaking that the Petitioner was never penalised for any work carried out by it for any Government department previously. If the Petitioner had any explanation to give in respect of imposition of these penalties, the Petitioner ought to have first disclosed these facts in the undertaking and then explained those penalties. But the Petitioner did not do so, neither in the undertaking nor in this petition.

28. It is clear that the Petitioner thus has not approached this Court with clean hands and to this extent we uphold the preliminary objection taken on behalf of Respondent Nos. 2 to 5 and Respondent No.8. The petition, therefore, deserves it’s rejection on this count also.

29. In the case of Dalip Singh (supra), the Apex Court has observed that in the last 40 years, a new creed of litigants has emerged and those who belonged to this creed do not have any respect for truth. It is further observed that those who attempt to pollute the stream of justice or who touch the pure fountain of justice with tainted hands are not entitled to any relief interim or final. The relevant observations of the Supreme Court appear in Paragraph-2 and they are reproduced as below:

“2. In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.”

30. Similarly, in the case of K.D.Sharma (supra), the Apex Court has held that the jurisdiction of the High Court under Article 226 of the Constitution is extraordinary, equitable and discretionary and it is imperative that the Petitioner approaching the writ Court must come with clean hands and put forward all the facts before the Court without concealing and suppressing anything. It has further held that absent a candid disclosure of relevant and material facts, the petition is liable to be thrown out at the threshold itself. The law laid down by the Supreme Court in the aforesaid case of Dalip Singh and K.D.Sharma squarely applies to the facts of the present case discussed earlier and, therefore, this petition is liable to be dismissed at the threshold, without any further consideration of the other points raised by the Petitioner.

31. Even then, we would like to take up for our consideration one of the issues raised by the Petitioner as both sides have, while arguing about the question of maintainability of this petition, made their respective submissions on this point as well. It pertains to completion or inability to complete by the Petitioner the Geo-Tagging of all sites within stipulated time.

32. The Petitioner was required to complete Geo-Tagging of 4 sites, (i)Bamanwada (ii) Village Bhendala and (iii) Nandoli. It was to be done during the period from 16th July 2021 to 23rd July 2021. But, admittedly the Petitioner could not complete the Geo-Tagging of the site of Head Regulator at Bhendala before the last date of 23rd July 2021. According to learned Senior Counsel for the Petitioner, this was for reasons not within the control of the petitioner and in any case, this condition was not an essential condition of the Tender document.

33. Let us first examine the issue if the said condition was or was not the essential condition. We find that the submission made in this regard is proved incorrect b

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y Condition No.73 contained in Section (vii), pointed out by learned Senior Advocate for respondent nos.2 to 5. It lays down that it is mandatory for the Contractor to complete Geo- Tagging by visiting the sites within the allotted five days. This condition prescribes that the Contractor shall compulsorily submit the Geo-Tagging Form in Envelope No.1 and failure to do so will make the tender unresponsive as per GoM WRD Corrigendum No.03 - tender 0417/Prakra 2016/NP-1, Mantralaya, Mumbai-32 dated 08/04/2021. This condition has neither been fulfilled nor has been challenged in any manner by the Petitioner and, therefore, the argument that completion of Geo-Tagging within the allotted time was not an essential condition, cannot be accepted. 34. In the case of Vidarbha Irrigation Development Corporation v/s. Anoj Kumar Garwala (2019 SCC Online SC 89)it has been held that the law is settled that an essential condition of a tender has to be strictly complied with. The completion of Geo-Tagging of the sites within the allotted period was an essential condition here and the Petitioner having committed its breach would not be entitled to any relief following the law declared by the Apex Court in the aforesaid case. This would render the argument that non completion of Geo-tagging was for reasons not within the control of the petitioner as inconsequential. 35. Learned Senior Advocate appearing for Respondent No.8 has referred to the following case laws: (i) Silppi Constructions Contractors v/s. Union of India and Anr. (2020) 16 SCC 489) (ii) Galaxy Transport Agencies, Contractors, Traders, Transports and Suppliers v/s. New J.K. Roadways, Fleet Owners and Transport Contractors and Ors. (2020) SCC OnLine SC 1035 ) These cases are on the other issues which relate to merits of the matter. But as we have not dealt with those other issues, not being necessary, we need not consider these cases. 36. Learned Counsel for the Petitioner has also submitted that as per the G.R. dated 8th April 2021 it was mandatory for Respondent Nos.2 to 5 to fix the last date of submission of Tender in a manner that upon expiry of the period assigned for completion of Geo-Tagging of the sites, five clear working days would become available to a Tenderer before the last date of submission of tender and in this case only two working days were available. Therefore, he further submits, the whole tender process is vitiated. The availability of only two working days after the closing date of the Geo-Tagging site and before the last fixed date for submission of the Tender is a matter of record but, the Petitioner has not challenged in any manner the period so fixed in the Tender Notice for site visits and completion of Geo-Tagging of the sites. Then, if the Petitioner was to question the short availability of time for site visits, it ought to have been done by the Petitioner before taking part in the tender process which is also not the case here. The argument is, therefore, rejected with due respect. 37. In the result, we find that the petition cannot be entertained and it is dismissed as not maintainable. No costs. 38. Rule is discharged.
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