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Madhya Pradesh High Court · body

2014 DIGILAW 294 (MP)

Narmada Enterprises v. State of M. P.

2014-03-12

ALOK ARADHE

body2014
Judgment: Alok Aradhe, J. 1. With consent of the parties, the matter is heard finally. In this writ petition, the petitioner has assailed the validity of the order dated 30-10-2013 by which the rates offered by respondent No. 3 for transportation of food-grains pursuant to the notice inviting tender dated 17-9-2013 have been approved by the Deputy General Manager (Transportation) of respondent No. 1-Corporation. 2. Facts giving rise to filing of the writ petition briefly stated are that respondent No. 1 invited tenders for transportation of food-grains for the year 2013-14 vide notice inviting tender (NIT for short), which was published in the local newspaper dated 7-9-2013. The last date for submission of the tenders was 27-9-2013 upto 3.00 p.m. The tenders were to be opened at 3.30 p.m. The petitioner as well respondent No. 3 submitted their tenders for LRT (Procurement) Sector Seoni, Distt. Seoni. Admittedly, the bid submitted by respondent No. 3 was the lowest whereas, the petitioner was the second lowest bidder. Clause 1.4a of the N.I.T., provides that the tenderer should have ten heavy vehicles either belonging to himself or the firm. Out of the aforesaid ten heavy vehicles, five vehicles should belong to the tenderer/his firm and five vehicles can be procured on contract basis. Clause 4.3.1 of the N.I.T. mandates that the agreement for procurement of the vehicle has to be self-attested. 3. After opening of the technical and financial bid on 27-9-2013, the petitioner submitted an objection on 30-9-2013 inter alia on the ground that the bid submitted by respondent No. 3 is liable to be rejected as the agreement submitted by respondent No. 3 were not signed by the witnesses. However, the General Manager (Transportation) of respondent No. 1-Corporation after obtaining legal opinion, came to the conclusion that it is not necessary to obtain the signature of the witnesses on an agreement. Thereafter, by an order dated 30-10-2013, the rates offered by respondent No. 3, who was the lowest bidder, were approved. In the aforesaid factual background, the petitioner has approached this Court. 4. Learned counsel for the petitioner submitted that the agreements furnished by respondent No. 3 are not valid agreements, as there are no witnesses to the agreements. Thereafter, by an order dated 30-10-2013, the rates offered by respondent No. 3, who was the lowest bidder, were approved. In the aforesaid factual background, the petitioner has approached this Court. 4. Learned counsel for the petitioner submitted that the agreements furnished by respondent No. 3 are not valid agreements, as there are no witnesses to the agreements. Learned counsel for the petitioner has also invited the attention of this Court to the opinion given by one Shri S.B. Agnihotri, Advocate, in support of his submission that agreements has no sanctity in the eye of law, as the same are required to be attested by atleast two witnesses under Section 68 of the Evidence Act. It is also submitted that the petitioner is ready to perform the contract on the rates given by respondent No. 3. 5. On the other hand, learned counsel for respondents No. 1 and 2 has submitted that there is no requirement of attestation by the witnesses in respect of an agreement and after obtaining legal opinion, the decision was taken to approve the offer submitted by respondent No. 3, who was the lowest bidder. Learned counsel for respondent No. 3 submitted that the petitioner had obtained the opinion of Shri S.B. Agnihotri, Advocate and the only requirement as per the N.I.T. was that the agreement should be self-attested. Therefore, the contention that the agreement produced by the petitioner is void is incorrect. In this connection, learned counsel for respondent No. 3 has invited the attention of this Court to Section 2(h) and Section 10 of the Indian Contract Act, 1872. It is also urged that subsequent to approval of rates offered by respondent No. 3, an agreement was executed and respondent No. 3 has successfully executed the contract so far and only period of two months is left as contract is valid upto 15-5-2014. 6. I have considered the respective submissions made by learned counsel for the parties. 7. The terms of invitation of tender are not open to judicial scrutiny as the same are the realm of contract. The Government must have a free and fair as well as reasonable play in its joints in setting out terms of tender. See: Director of Education vs. Education Datamatics Ltd., (2004) 4 SCC 19 . Section 2(h) of the aforesaid Act, provides that an agreement enforceable by law is a contract. The Government must have a free and fair as well as reasonable play in its joints in setting out terms of tender. See: Director of Education vs. Education Datamatics Ltd., (2004) 4 SCC 19 . Section 2(h) of the aforesaid Act, provides that an agreement enforceable by law is a contract. Section 10 of the Indian Contract Act, 1872 provides that all agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. Thus, the essential ingredients of valid contract are namely; free consent of parties competent to contract, lawful consideration and lawful object. Clause 4.3.1 of the Notice Inviting Tender only requires self-attested copy of the agreement to be furnished. The object of Clause 4.3.1 is to ensure requisite number of vehicles for smooth execution of the contract. From perusal of the copies of agreements furnished by the respondent No. 3, it is evident that requirement of Clause 4.3.1 of the Notice Inviting Tender is fulfilled. 8. No provision has been brought to the notice of this Court which requires agreement to be attested. Admittedly, the respondent No. 3 is a lowest bidder, therefore, his bid has rightly been accepted. Section 68 of the Indian Evidence Act, 1872, provides that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. Section 68 of the Act deals with admissibility of the document, which is required by law to be attested. Execution of a document and its attestation are two different acts. An agreement is not required to be attested by law. Therefore, the contention made by learned counsel for the petitioner that the agreement requires attestation under Section 68 of the Indian Evidence Act cannot be accepted. 9. For the aforementioned reasons, I do no find any infirmity in the action of the respondents No. 1 and 2 in accepting the rates offered by the respondent No. 3. In the result, the writ petition fails and is hereby dismissed.