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M/s. Ambuj Hotels & Real Estates (P) Ltd., rep. by its Director, v/s The Executive Director (Catering) Rail Bhavan & Others

    W.P. Nos. 13932 & 13933 of 2014 & M.P. Nos. 1 & 2 of 2014
    Decided On, 18 June 2014
    At, High Court of Judicature at Madras
    For the Petitioner: N. Prakash, Sr. counsel, Pradeep Ranjan Tiwari, Advocate. For the Respondents: R1 & R2, V.G. Suresh Kumar, M.S. Krishnan, Sr. counsel for Rajkishore Bhagwatsaran, Advocates.

Judgment Text
(Prayer: Writ petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of mandamus to direct the respondents 1 and 2 that the financial bid of the petitioner company in relation to Train NO.12615-16 Chennai Central - New Delhi Grand Trunk Express shall also be opened and till then no Ward of Contract should be given to any of the successful bidder.)

1. By consent the main writ petition itself is taken up for final disposal.

2. The petitioner company is engaged in the catering service of Railways, particularly in Rajdhani and Shatabdi express. The first respondent issued a tender document for provision of catering services on Train No.12615/16 Chennai Central - New Delhi Grand Trunk Express, dated 27.5.2013. The petitioner submitted the bid document for participation in technical and financial bid and it has given the Permanent Account Number, VAT/Service Tax Registration Number, Commercial Gas Cylinder License, Fire Training Certificate and PF Registration number. However, in Annexure A/2, under Serial Nos.10 and 11, the petitioner has mentioned only the EPF Registration Number and missed to mention the ESIC Registration number. The Second respondent issued a communication dated 01.04.2014 seeking clarification in regard to the above said repetition of EPF Registration Number in Sl.Nos.10 and 11. The petitioner submitted its reply letter, dated 04.04.2014, followed by another letter, dated 24.04.2014, but the respondents have not responded to the same. It is stated that in the previous bid documents issued by the Southern Railways, there was no clause in relation to ESIC account and the same is not mandatory to decide the bid/tender.

3. It is also stated that the financial bid was opened on 19.5.2014 without any information to the petitioner company. Hence the petitioner has come up with the present writ petition for a direction to respondents 1 and 2 to open the financial bid of the petitioner company in relation to train NO.12615-16 Chennai Central - New Delhi Grand Trunk Express.

4. Learned counsel for the petitioner submitted that the conditions which were imposed, including the condition for production of ESIC Number and the Registration Certificate cannot be termed as a mandatory. Therefore, the learned counsel contended that in view of the fact that the condition regarding mentioning of ESIC Number is not a mandatory, the authorities should not have rejected the tender form on the technical side. They should have also opened the financial bid of the petitioner.

5. The learned counsel for the respondents brought to the notice of this Court that under clause 3.5 of Chapter 3 of the Bid Document, the Additional Mandatory Requirements have been clearly spelt out. Clause 3.5 of Chapter-3 of the Bid Document is extracted hereunder for ready reference:

"3.5 Additional Mandatory Requirements:

3.5.1. All other mandatory requirements have been enlisted at Annexure A/2, Chapter 1 of Section B of the Bid Document. This includes Permanent Account Number, VAT/Service Tax Registration, ESIC and PF Registration, Commercial Gas Cylinder License, Fire Training Certificate etc."

6. Further, in Annexure A/2 under Chapter 1 of Section B of the Bid Document, the 'Mandatory Information for Eligibility of the Bid' is provided under Clauses 10 and 11 and the same are extracted hereunder for ready reference:

"10.ESIC Registration of the bidder (please enclose attested photo copy of ESIC Registration)"

11. PF Registration of the bidder (please enclose attested photocopy of Provident Fund Commissioner)."

7. When the above requirements are mandatory, even as per the Tender Notification, the present argument that those are not mandatory requirements and the mere non-filling of the document, which is only a mistake, should not be taken as suppression of fact, cannot be countenanced. The learned counsel has relied on the judgements of the Honourable Apex Court in W.B.State Electricity Board vs. Patel Engineeering Co.Ltd and Others (2001)2 Supreme Court Cases 451 and (2013) 10 Supreme Court Cases 95 - Rashmi Metaliks Limited and Another vs. Kolkata Metropolitan Development Authority and others.

8. The successful bidder is also impleaded as a party and he would contend that he has already deposited the amount and he has complied with all the requirements as contemplated under the Tender Bid and therefore there is no violation, according to him. He would also contend that a person who has committed mistake in not even filling the forms correctly, cannot be allowed to rectify the same, that too, when the tender bid was rejected by the authorities. Furthermore, the second respondent has also pointed out the said mistake in his letter dated 01.04.2014. In this case, the tender was opened in the year 2013 and after one year the petitioner cannot be allowed to rectify the mistake.

9. Heard the learned counsel for the petitioner as well as the respondents and the learned counsel appearing for the impleaded party and also perused the materials available on record, carefully.

10. The petitioner admits that at the time of filing the tender bid, they did not comply with the mandatory requirements as contemplated in the tender document. But the petitioner contends that the requirement is not a pre-requisite or mandatory one, as it is only ESIC number and PF Registration certificate.

11. In this connection, we will have to see the tender notification. Clause 3.5 of the tender Notification specifically contemplates that a participant has to produce certain documents. The petitioner is not the authority to decide as to whether the said requirement is mandatory or not. When the tender is called for and the same was expected to be filed in a particular manner, the act should be done only in accordance with the manner prescribed in the tender document and the same cannot be deviated by the participant.

12. Moreover, as rightly pointed out by the learned counsel for the respondents the tender was called for in the year 2013 and the petitioner knew very well that at that time they did not possess the certificates. The Honourable Apex Court in (2001) 2 SUPREME COURT CASES 451 - W.B.STATE ELECTRICITY BOARD VS. PATEL ENGINEERING CO.LTD AND OTHERS, in paragraph No.27 has held as follows:

"27. Exceptions to the above general principle of seeking relief in equity on the ground of mistake, as can be culled out from the same para, are:

(1)Where the mistake might have been avoided by the exercise of ordinary care and diligence on the part of the bidder; but where the offeree of the bid has or is deemed to have knowledge of the mistake, the cannot be permitted to take advantage of such a mistake.

(2)Where the bidder on discovery of the mistake fails to act promptly in informing to the authority concerned and request for rectification, withdrawal or cancellation of bid on the ground of clerical mistake is not made before opening of all the bids.

(3)Where the bidder fails to follow the rules and regulations set forth in the advertisement for bids as to the time when bidders may withdraw their offer; however where the mistake is discovered after opening of bids, the bidder may be permitted to withdraw the bid. "13. On a perusal of the above extract, it is clear that the bidder, on discovery of the mistake, fails to act in time to rectify the same, he cannot be allowed to do so at a later stage. In this case, the bid was opened in the year 2013 and after one year, the petitioner came forward with this writ petition. Therefore, on that ground, definitely the petitioner cannot take advantage of the mistake and now seek to rectify the same.

14. As far as the one other judgement relied on by the learned counsel for the petitioner in Rashmi Metaliks Limited and another vs. Kolkata Metropolitan Development Authority and Others, reported in (2013) 10 Supreme Court Cases 95, is concerned, paragraph No.18 of the judgement is extracted hereunder:

"18.We think that the income tax return would have assumed the character of an essential term if one of the qualifications was either the gross income or the net income on which tax was attracted. In many cases this is a salutary stipulation, since it is indicative of the commercial standing and reliability of the tendering entity. This feature being absent, we think that the filing of the latest income tax return was a collateral term, and accordingly the Tendering Authority ought to have brought this discrepancy to the notice of the appellant company and if even thereafter no rectification had been carried out, the position may have been appreciably different. It has been asserted on behalf of the appellant Company, and not de

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nied by the learned counsel for the respondent Authority, that the financial bid of the appellant company is substantially lower than that of the others, and, therefore, pecuniarily preferable." 15. A careful reading of the above would clearly indicate that the tendering authority should have brought to the notice of the bidder the mistake committed in the tender document. Here in this case, the requirement is a mandatory one and the same has been spelt out in the tender notification itself. Apart from that, the second respondent has also sent a letter dated 04.04.2014, but the fact remains that the tender was opened long back in the year 2013 itself. Therefore, even after opening of the tender bid and till date when the petitioner was not able to produce the required documents, the petitioner cannot be allowed to rectify the mistake. 16. In the result, the writ petition is dismissed. No costs. Connected miscellaneous petitions are dismissed.