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2015 DIGILAW 370 (MP)

RANJEET RAI v. STATE M. P.

2015-03-31

C.V.SIRPURKAR, RAJENDRA MENON

body2015
ORDER : 1. Petitioner has filed this writ petition challenging the oral order passed by the respondents communicated to the petitioner on 29.3.2015, by which petitioner's bid for grant of contract of a retail liquor outlet at Devendra Nagar Group, District Panna has been rejected. 2. Petitioner had submitted his bid for the said shop and his bid for Rs. 2,28,56,000/- was the highest. Petitioner had deposited various cheques for complying with the requirement of payment of half of the amount of the bid and various other security provisions as per the terms and conditions of the tender. However, in the cheques submitted instead of mentioning the date as 27.3.2015', the date is mentioned as 23.3.2015', therefore the bid has been cancelled and the bid of the next person represented by Shri Rahul Diwakar has been accepted. 3. The only question warranting consideration is as to whether on account of furnishing a wrong date in the cheques in question i.e... mentioning the date as 23.3.2015', the bid of the petitioner which was the highest should be rejected or not. 4. It is the case of the petitioner that the cheques in question are very much in accordance to the requirement of law except for an error in the date, which is a curable error. As such, there is no reason for rejecting the claim of the petitioner. It is stated that similar question with regard to a technical error in mentioning a particular District in the cheque, for which the bid was given, has been considered and decided by this Court in Writ Petition No. 3740/2015 [M/s. Maxima Traders Bhopal Private Limited Vs. State of Madhya Pradesh and others] and by an order passed on 23.3.2015 holding that such an error in the cheque issued towards security is only an error which is curable and, therefore, after taking note of the provision of various clauses, particularly Clause 16 of the tender conditions, similar writ petition has been allowed. 5. Shri Alok Agrawal, learned counsel for the petitioner, placing reliance on the judgment rendered in the case of M/s. Maxima Traders (supra) seeks for indulgence. 6. 5. Shri Alok Agrawal, learned counsel for the petitioner, placing reliance on the judgment rendered in the case of M/s. Maxima Traders (supra) seeks for indulgence. 6. Shri K.S. Wadhwa, learned Additional Advocate General, and Shri Rahul Diwakar, learned counsel for respondent No. 5, invite our attention to Clause 16 and sub-clauses thereof, and submit that the cheque has to be drawn on the date on which the bid is submitted and as the bid was submitted on 27.3.2015', the cheques drawn on 23.3.2015' was not acceptable and if the bid of the petitioner is rejected on such consideration, it is only in accordance to the requirement of Clause 16 and, therefore, there is no illegality in the action of the State Government. 7. We have considered the rival contentions and we find that similar error committed by one of the bidders in the matter of not mentioning the name of the District for which the offer is given was considered by a Coordinate Bench of this Court in the case of M/s. Maxima Traders (supra) and identical provision as are contained in Clauses 16.11, 16.14 and 16.17 have been considered by this Court. From paragraph 7 onwards upto paragraph 12, the matter has been so considered by a Coordinate Bench of this Court, as under:- "7. We have considered the submissions made on both sides. The requirement contained in tender notice can be classified into two categories, namely, one which lay down essential conditions of eligibility and others which are other ancillary or subsidiary conditions. In the first case, the authority issuing tender may be required to enforce them rigidly whereas in another case it may be open to the authority to deviate from the conditions and not to insist upon the strict and literal compliance of the conditions in an appropriate case. Such deviation is permissible unless it results in substantial prejudice or injustice to any of the parties involving or to the public interest in general. [See. M/s. G. J. Fernandez Vs. State of Karnataka and others, AIR 1990 SC 958 and M/s. Poddar Steel Corporation Vs. M/s. Ganesh Engineering Works and others, AIR 1991 SC 1579 . It has further been held that rectification of ancillary and substantial condition is permissible. [See: Rashmi Meltaliks Ltd. (supra). In case of Jal Mahal Resorts P. Ltd. Vs. [See. M/s. G. J. Fernandez Vs. State of Karnataka and others, AIR 1990 SC 958 and M/s. Poddar Steel Corporation Vs. M/s. Ganesh Engineering Works and others, AIR 1991 SC 1579 . It has further been held that rectification of ancillary and substantial condition is permissible. [See: Rashmi Meltaliks Ltd. (supra). In case of Jal Mahal Resorts P. Ltd. Vs. K.P. Sharma and Others, (2014) 8 SCC 804 it has been held that when there is substantial compliance of terms of tender, the government is entitled to waive the non-essential term in the tender for bonafide reasons and in public interest. 8. In order to appreciate the controversy involved in the instant writ petition we deem it appropriate to reproduce the relevant extracts of Clauses 16.7, 16.11 and 16.14 of Notice Inviting Tender, which read as under:- 9. Thus, it is evident that intending bidder alongwith his financial bid is required to submit a cheque of not less than one- twelfth of the offer which he has quoted in the financial bid. Clause 16.11 further stipulates that cheque of one-twelfth amount shall be drawn in the name of Assistant Exercise Commissioner of the concerned district/ District Excise Officer. The intending bidder has to enclose Part I and Part-II of the Bid in separate envelopes and thereafter he is required to keep both the envelopes in third large envelope. Admittedly, the petitioner has furnished a cheque of one-twelfth of the amount of bid and the cheque submitted by the petitioner is a multicity cheque which is payable at par with all the branches of the Bank on which it is drawn. It is also not in dispute that the bid of the petitioner is higher by approximately Rs.70 lacs than the bid submitted by respondent No. 5. 10. From careful scrutiny of clause 16.14 of the Notice Inviting Tender it is evident that in case the intending bidder submits a cheque of less than one-twelfth of the offer that he has quoted in the financial bid or where the cheque is not furnished or when there is some error in the cheque, the financial bid of such bidder shall not be considered. In the instant case, as stated supra, it is not disputed that petitioner has submitted one-twelfth of the offer which he has quoted in the financial bid. In the instant case, as stated supra, it is not disputed that petitioner has submitted one-twelfth of the offer which he has quoted in the financial bid. Admittedly, the cheque is a multicity cheque and bears the date of tender proceeding. It is also not in dispute that petitioner has offered in respect of Jai Stambh Chowk Group Retail Liquor Shop in District Satna. The cheque has been drawn in favour of Assistant Excise Officer. However, the word "Satna", has not been mentioned. The aforesaid defect, if any, in the cheque is a curable defect and in our opinion, is a non-essential term in the tender. It is permissible for the State and its officers to waive the aforesaid non-essential term for bonafide reasons and in public interest. Admittedly, the petitioner is the highest bidder and in case, the tender is accepted the public exchequer would be augmented. We are fortified in our aforesaid view by the decision of Supreme Court in the case of Poddar Steel Corporation (supra) where the bidder had submitted a cheque drawn on Union Bank of India instead of Demand Draft drawn on State Bank of India and the Supreme Court upheld the action of the State in accepting the bid of the bidder which in public interest as the said bid was the highest. 11. Besides that, the object of the State in directing the intending bidder is to ensure financial safety of the bid and that safety by the bidder so that the successful bidder may not later on deny to accept the licence. It is pertinent to reiterate that the cheque submitted by the petitioner is a multicity cheque and the Bank has already indicated that same shall be honoured as and when it is presented. Thus, the object of putting the condition in the NIT is also fulfilled. In any case, there is substantial compliance of the concerned condition of the NIT by the petitioner. 12. The decisions relied upon by the respondents in the case of Harpal Singh Bhatia (supra) is of no assistance to the respondents in the obtaining factual matrix as in the said case the bidder was granted two days' time to submit a fresh cheque of correct amount which was held to be impermissible, which is not the case here. 12. The decisions relied upon by the respondents in the case of Harpal Singh Bhatia (supra) is of no assistance to the respondents in the obtaining factual matrix as in the said case the bidder was granted two days' time to submit a fresh cheque of correct amount which was held to be impermissible, which is not the case here. Similarly, the decisions relied upon by the respondents in the case of Jagdish Mandal (supra), Adani Exports Ltd. (supra) and Kanhaiya Lal Agrawal (supra) are of no assistance to the respondents in the facts of the case as we have already held that the decision of respondents No. 1 to 4 in rejecting the financial bid of the petitioner is arbitrary and irrational." (Emphasis supplied) 8. In the present case also, similar situation exists. This is also a case where there is an error in indicating the date on the cheques, this is a curable error and by indicating an incorrect date the cheques do not become invalid and the breach of the bid conditions is only a technical breach, which is not mandatory in nature. Infact, the error or default amounts to breach of an ancillary or subsidiary condition. 9. For the grounds and reasons already considered and indicated by this Court in the case of M/s. Maxima Traders (supra), we see no reason to take a different view in the present case, as the same principle can be safely applied in this case also. 10. Accordingly, this petition is also allowed. The oral order passed by the respondents rejecting the claim of the petitioner is quashed. Respondents are directed to process the financial bid of the petitioner and take a decision with regard to award of contract in question subject to the petitioner complying with the requisite formalities. 11. Petition stands allowed and disposed of. Allowed.