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M/s. Kumar Construction through its proprietor Suresh Kumar v/s The State of Bihar through the Secretary of Minor Water Resources Department, Bihar, Patna & Others

    C.W.J.C. No 9067 of 2011

    Decided On, 09 September 2011

    At, High Court of Judicature at Patna

    By, THE HONOURABLE MR. JUSTICE S.N. HUSSAIN

    For the Petitioner: Raghib Ahsan, Senior Advocate with Manish Sahay, Advocate. For the Respondents: R1 to R5, Raj Kamal, A.C. to S.C. 9, R6, N.K. Malhotra, Senior Advocate with Sunil Kumar, Advocate.



Judgment Text

S.N. HUSSAIN, J.

1. Originally this writ petition was filed only against the State of Bihar and its authorities, namely respondent nos. 1 to 5 for the following reliefs:-

(i) For directing the concerned respondent to produce the concerned letter by which technical bid of the petitioner has been cancelled in most arbitrary manner and having ulterior motive and quash the same because that cancellation was based on the sole ground that the petitioner has failed to give dates below his signatures, which were put on the tender documents, although entire documents were attested by the Gazetted officer.

(ii) For further commanding the concerned respondents to consider the tender of the petitioner along with other bidder after opening of his financial bid and proceed in accordance with law for allotment of work in question.

(iii) For passing such order or orders for which the petitioner is entitled under the law in the facts and circumstances of the case.

2. The short facts of this case is that Notice Inviting Tender (N. I. T.) No.05/2010-11 was published in the Hindi Daily Newspaper 'Hindustan' on 16.02.2011 (Annexure-1) by the Executive Engineer, Minor Irrigation Division, Nalanda (respondent no.5) by which eligible contractors registered only in the Water Resources Department were invited to take part in the tender for single work namely 'Extensive Renovation of Nirpur Aahar & Pyne under Noorsarai Block of District Nalanda'. The petitioner submitted his tender within the time prescribed fulfilling all the requirements. Thereafter the petitioner learnt that the authorities of the Department concerned rejected his technical bid on the sole ground that he had not given his dates below his signatures.

3. Learned counsel for the petitioner also submitted that neither petitioner was given any notice or information about the said order, nor a copy of that order was ever supplied to him. He further submitted that since the said rejection was merely due to hyper technicality which was deprecated by the Apex Court as well as by this court, the petitioner approached the Chief Engineer, Minor Water Resources Department, Govt. of Bihar (respondent no.3) stating that a copy of the said order be supplied to him to enable him to challenge the same before the High Court, but he refused to supply the same. The petitioner filed an application dated 03.05.2011 (Annexure-3) to the Public Information Officer under the Right to Information Act, 2005 for supply of the order of the authority by which the petitioner’s tender was rejected, but inspite of repeated request, the said order was not supplied to the petitioner and hence the petitioner was constrained to file this writ petition without annexing a copy of the impugned order, even the date of which was not known to the petitioner.

4. Learned counsel for the petitioner stated that he filed the instant writ petition on 18.05.2011 and when it was taken up by this court on 20.05.2011, the petitioner was heard but adjournment was sought by learned counsel for the respondents for filing counter affidavit and considering the claims of the parties and the materials on record, this court restrained the respondents-authorities from creating any 3rd party right in the light of N. I. T. No.05/2010-11, if not yet created. He further stated that before that respondents had stealthily issued allotment letter dated 13.05.2011 (Annexure-4) in favour of one Sri Mukesh Kumar Singh, but neither work order was given to him nor he had started any work.

5. In the said circumstances, the petitioner filed I.A.No.4576 of 2011 for adding the said Sri Mukesh Kumar Singh as respondent no.6 to the writ petition and also for adding a relief challenging letter no.691 dated 13.05.2011 (Annexure-4) sent by the Chief Engineer (respondent no.3) to the Executive Engineer approving the allotment in favour of the said Sri Mukesh Kumar Singh. The said Sri Mukesh Kumar Singh himself filed I.A.No.4385 of 2011 in the instant case for being added as a party respondent to the writ petition claiming that the work in question has been allotted to him by the authorities after completing all the legal formalities. In the said circumstances, both the interlocutory applications were allowed by this court vide order dated 20.07.2011 and the said Sri Mukesh Kumar Singh was added as respondent no.4 and the aforesaid relief was also added to the writ petition as relief no.(iv).

6. Learned counsel for the petitioner averred that admittedly there was no objection by the respondents that the tender submitted by the petitioner was belated or was without any paper necessarily required for the tender. The only reason, as claimed by the respondents, for rejection of petitioner’s tender was violation of clause 17 of the N. I. T. by not giving the date below his signatures on the pages of the documents produced.

7. Learned counsel for the petitioner further averred that it is not in dispute that the petitioner had signed on all the pages of tender, including the documents attached thereto, as is apparent from the tender attached to the counter affidavit of respondent nos.1 to 5 as Annexure-C and the only defect pointed out was that the date was not given by the petitioner below his signatures, but the said signatures of the petitioner had been attested by the Gazetted Officer with his seal and while doing so the said authority had given the dates also. Hence, he claimed that the petitioner not giving the dates below his signatures hardly had any effect and thus clause 17 of the N. I. T. was clearly not violated.

8. Learned counsel for the petitioner argued that the impugned rejection of petitioner’s tender was a mere hyper technicality which had been deprecated by courts of law, including in order dated 17.04.2009 (Annexure-2) passed by a Bench of this Court in CWJC No.17779 of 2008 relying upon the decisions of the Apex Court in case of Mangalore Chemicals and Fertilisers Limited Versus Deputy Commissioner of Commercial Taxes and others reported in 1992 Supp (1) Supreme Court Cases 21 and in case of Poddar Steel Corporation Versus Ganesh Engineering Works and others reported in (1991) 3 Supreme Court Cases 273 as well as in case of Kedar Nath Singh versus State of Bihar & others reported in 2003(4) PLJR 445, especially when the petitioner had sufficiently fulfilled the requirements and nothing was done by the petitioner to violate the essential conditions of eligibility and had fully complied clause 13 of the N. I. T.

9. Learned counsel for the petitioner also argued that although the impugned letter of allotment had been issued to respondent no.6, but no work order has been given to him, nor he had started any work. It is further stated that respondent no.6 has also not deposited any money, except earnest money, whereas the petitioner had deposited the required earnest money and had quoted the same amount in his tender as was quoted by respondent no.6, but only to give preference to respondent no.6, petitioner’s tender had been illegally rejected by the respondents-authorities.

10. On the other hand, learned counsel for the State of Bihar and its authorities (respondent nos.1 to 5) submitted that pursuant to the notice inviting tender in question, 12 tenderers participated, out of whom 9 tenderers failed to qualify the technical bid due to not fulfilling clause 13 and clause 17 of the N. I. T. which are compulsory clauses. It is also stated that financial bid of the three tenderers, who had qualified, were opened and it was found that the rate quoted by one tenderer was on the schedule rate and the rate quoted by the other two tenderers were 15% below the schedule rate and hence draw of lots was organized between the two equal and lowest rate quoting tenderers in the office of Chief Engineer, Minor water Resources Department, Patna and the draw of lots went in favour of respondent no.6 who was thus declared successful and the letter of allotment was issued in his favour on 13.05.2011.

11. It was also claimed by learned counsel for respondent nos. 1 to 5 that the petitioner was among the above mentioned nine tenderers who could not qualify the technical bid due to violation of clause-17 of N. I. T. by not putting the dates below his signatures on various pages of his tender. He also stated that the attesting authority had not written the word 'Attested' although he had signed on every page below the signatures of the petitioner, hence, the aforesaid condition of the N. I. T. which was essential in nature not having been complied the tender of the petitioner was not legal and valid and hence it was rightly not considered.

12. Learned counsel for respondent no.6 also contested the claim of the petitioner and stated that clause 17 of the N. I. T. was mandatory in its nature and its non-fulfillment rendered the tender itself invalid. He also claimed that tender of other bidders were also rejected as they did not fulfill clauses 13 and 17 of the N. I. T., out of whom one tenderer namely Neelam Raj Construction Private Limited came to this Court vide CWJC No.9041 of 2011, but withdrew the same on 20.05.2011.

13. Learned counsel for respondent no.6 further argued that the decision of this court dated 17.04.2009 (Annexure-2) had been wrongly relied upon by learned counsel for the petitioner as it was not applicable to the facts and circumstances. He also averred that work order has already been passed in favour of respondent no.6 and the authority concerned had allotted work to respondent no.6 on 10.05.2011 (Annexure-I/2) and he had already deposited the earnest money and the Reserve Jama. Hence, he averred that the grievance of the petitioner is not legal and valid and no relief can thus be granted to him.

14. From the arguments of learned counsel for the parties and the materials on record, it is quite apparent that the impugned order rejecting the tender of the petitioner at the time of opening of the technical bid had been passed on the sole ground of violation of clause-17 of the N. I. T. which required the tenderer to put his signature with date attested by the Gazetted Officer on each and every page of the tender, including the documents. The admitted case of the parties is that although the petitioner had put his signature on each and every page of the tender, including documents, but he did not give the date below his signatures. It is also not in dispute that the signatures of the petitioner on each page had been attested by the Gazetted Officer who had given dates below his signatures without mentioning the word 'attested'.

15. So far the absence of word 'attested' above the signatures of the attesting authority on each and every page of the tender is concerned, no rule has been produced nor any requirement is shown by the respondents requiring the word 'attested' to be mentioned. Since the requirement was attestation by a Gazetted Officer, the signature of any Gazetted Officer below the signature of the tenderer would clearly mean that the said Gazetted Officer had attested the signature of the tenderer, especially when there was no other reason for any Gazetted Officer to put his signature and seal on any such document. Hence, the said objection raised by learned counsel for the respondents has no force at all.

16. So far the question of not putting the date by the petitioner below his signature on various pages of his tender, including documents attached to it, is concerned, it is specifically mentioned in clause 17 of the N. I. T. (Annexure-1) that the signature of the tenderer should be with date as well as attestation by a Gazetted Officer. Hence, if the attestation contains the date of attestation it would clearly mean that the tenderer had signed before the Gazetted officer, who had on that very date and time attested the signature of the tenderer and had given the date thereof.

17. Hon’ble Mr. Justice L.M. Sharma presiding over a Bench of the Supreme Court in case of Poddar Steel Corporation versus Ganesh Engineering Works and others reported in (1991) 3 Supreme Court Cases 273 had specifically held that '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 of the condition in appropriate cases.' In the instant case, it has to be seen as to which of the aforesaid two clauses, the present case belongs.

18. Since the requirement of clause-17 of N. I. T. is the signature of the tenderer on every page of the tender with date and attestation, one of which had been admittedly fulfilled as attestation was found below the signature of the tenderer on every page of the tender, whereas the other requirement of giving dates had also been fulfilled, if not by the petitioner, then definitely by the attesting authority who had admittedly given the date of the attestation on each and every page of the tender. Even though it may not be a very strict compliance of the terms of the tender, but definitely it was sufficient compliance thereof, especially when the same did not affect the tender in any manner whatsoever.

19. In case of Wells v. Minister of Housing and Local Government (1967) 2 All England Report, Lord Denning had specifically observed that, 'Now I know that a public authority cannot be estopped from doing its public duty, but I do think it can be estopped from relying on a technicality and this is a technicality.'

20. Furthermore, the term 'Unnecessary technicality' finds place in the Book of Statutory Interpretation in which its author Francis Bennion had found that 'Modern courts seek to cut down technicalities attendant upon a statutory procedure where these cannot be shown to be necessary to the fulfillment of the purposes of the legislation.'

21. In the instant case, the purpose of the tender not having been violated, the authorities have become hyper technical and had rejected the tender of the petitioner due to the aforesaid technicality, which was absolutely unnecessary and hence it had to be cut down, specially when no concealment and/o

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r falsehood was found to have been committed by the petitioner. 22. So far the rejection of other tenders at the time of opening of technical bid is concerned, the grounds of their rejection are completely different and non filing of any case by those tenderers cannot legally affect the claim of the petitioner and even the withdrawal of CWJC No.9041 of 2011 by its petitioner Neelam Raj Construction Pvt. Ltd. on 20.05.2011 was a withdrawal simplicitor not affecting the claim of others, including the petitioner or the respondents of this case. Hence, learned counsel for the respondents has erred in relying upon the same. 23. Considering the matters in their entirety as well as the above mentioned facts and findings of this court, the order dated 13.05.2011 (Annexure-4 to the writ petition and Annexure-B to the counter affidavit of respondents no.3 to 5) vide letter 691 issued by the Chief Engineer, Minor Water Resources Department, Govt. of Bihar (respondent no.3) to the Executive Engineer, Minor Irrigation Division, Nalanda (respondent no.5) is hereby quashed and the respondents authorities are directed to accept the technical bid of the petitioner as valid and thereafter to consider the financial bid of the petitioner along with financial bid of respondent no.6 and the remaining two tenderers whose financial bid had already been opened and proceed in accordance with law for allotment of the work in question to the tenderer who is found to be the best amongst them as per the rules and procedures. 24. With the aforesaid observations/directions, this writ petition is allowed.
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