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2020 DIGILAW 413 (UTT)

Shivam Mines & Minerals v. State Of Uttarakhand

2020-10-16

RAVI MALIMATH, RAVINDRA MAITHANI

body2020
JUDGMENT Ravi Malimath, A.C.J. - The appellant's counsel submits that he may be permitted to delete respondent no. 4 from the array of parties in the writ petition and, consequently, in this appeal also. His request is accepted. Respondent no. 4 is deleted from the proceedings at the request of the petitioner's counsel. The petitioner is adamant to file an amended writ petition within one week. 2. Learned chief standing counsel accepts notice for respondent no.1. 3. Shri Sandeep Kothari, advocate, appears for respondent no. 2 & 3. 4. Aggrieved by the order passed by learned Single Judge in declining to grant an interim relief, the writ petitioner has filed this appeal. 5. The case of the petitioner is that respondent no. 2 floated a tender notice on 22.08.2020 and, subsequent notification for participation in the e-tendering eligibility with regard to lifting of minor minerals of the Government, in Government Lot No. 13/1 Jakhan, Dehradun for the mining period 2020-2025. Various persons bid for the same, including the writ petitioner. When the technical bid was opened, it was initially found that the petitioner was qualified in the technical bid. At the time of opening the financial bid, the respondents rejected the plea of the petitioner, in terms of annexure-5, wherein it is indicated that he has failed to produce two photographs, but he has produced only one photograph. Thereafter, the financial bid was opened. One of the parties was the highest bidder in the auction. However, the tender was not confirmed in his name, in view of the fact that he was a defaulter. Thereafter, the respondents have initiated the proceedings to bring about a fresh tender. Questioning the same, the instant writ petition was filed. 6. Learned counsel for the petitioner contends that having accepted the technical bid of the petitioner, they could not have disqualified him at the stage of opening of the financial bid. The only reason assigned is that in place of two photographs, the petitioner has produced only one photograph; this is a non-essential condition, therefore, the same should have been ignored or liable to be corrected thereafter; in the case of some of the other tenderers, who had furnished only one photograph, their bids were accepted; and therefore, this amounts to a hostile discrimination. He further pleads that the petitioner was the highest bidder and in order to avoid his bid, the second tender is floated. 7. Learned counsel appearing for respondent nos. 2 & 3 disputes the same. He submits that the conditions in the tender notice specifies that two photographs should be produced; the petitioner has produced only one photograph; therefore, there is a violation; if there is any violation, the petitioner is not entitled to any relief; therefore, the next bidder was chosen, who unfortunately was a defaulter; hence, having no other option, a fresh tender has been undertaken; yesterday was the last date of receiving the bids and today they are opening the bids; and therefore, the appeal and the writ petition are required to be dismissed as being infructuous. 8. On hearing learned counsels, we are of the considered view that an appropriate interference is called for. 9. In the tender documents, at clause 8, it is indicated that there must be two passport photographs. In column no.8 of Part-1, (basic information) of the technical bid, (annexure-1 to the supplementary affidavit), it is indicated that there should be a self-attested passport size photo. In the checklist of e-tender, at page 43 of the writ petition vide annexure-2, at item no. 8, it is indicated that there should be a self-attested photo. Therefore, in the entire tender documents, the checklist etc. there appears to be places, where two photographs, are required and in other places, one single photograph is required. 10. Be that as it may, it is undisputed that production of a photograph is certainly a non-essential requirement. It has nothing to do with the technical bid or the ability or capacity of the tenderer. Therefore, we are of the considered view that rejecting the tender only on the ground that the second photograph was not furnished, cannot be accepted. This is especially so, in view of the fact that in the other portions of the tender documents, the reference is only to one photograph. Therefore, we are of the considered view that non-opening of the financial bid of the petitioner has led to miscarriage of justice. Furthermore, it can be see that even at the initial stage, the technical bid of the petitioner was accepted, but it is only later on, that it was rejected only on this ground. 11. Therefore, we are of the considered view that non-opening of the financial bid of the petitioner has led to miscarriage of justice. Furthermore, it can be see that even at the initial stage, the technical bid of the petitioner was accepted, but it is only later on, that it was rejected only on this ground. 11. The print out as produced vide annexure-4 with reference to the petitioner indicates that that the technical bid was opened and is accepted. Therefore, it is only just and necessary that the financial bid of the petitioner shall also be considered. 12. For these reasons, we are of the view that rejection of the bid of the petitioner only on the ground that the second photograph is not produced, is erroneous. The reason for rejection is a non-essential condition, which does not affect the validity of the tender. 13. It is further brought to our notice that certain other bids were also rejected on the ground of non- furnishing of the photographs and some on other reasons. Under these circumstances, we hold that the rejection of the tender document of the petitioner as well as anyone else, on the ground of non-furnishing of the photograph, is unacceptable. The rejection on this ground for all the bids concerned is set aside. However, so far as the rejection of the bid on other reasons are concerned, we leave it to the discretion of the concerned authorities to assess the same, to find out whether it constitutes an essential or non- essential requirement and thereafter to proceed further in the matter. It is for the concerned respondents to determine the same. 14. At this stage, the learned counsel for the respondents submits that subsequent to the rejection of the previous tender, a fresh tender has been called for; that yesterday was the last date for receiving the tender documents; that today, the bids are likely to be opened. They are still not opened. 15. In view of the aforesaid reasons, the calling for the tender for the second occasion becomes erroneous. Hence, the respondents are directed, not to open the bid documents of the second tender. Furthermore, the entire proceedings of the second tender are hereby quashed. 16. For all the aforesaid reasons, the appeal is party allowed in the aforesaid terms. 15. In view of the aforesaid reasons, the calling for the tender for the second occasion becomes erroneous. Hence, the respondents are directed, not to open the bid documents of the second tender. Furthermore, the entire proceedings of the second tender are hereby quashed. 16. For all the aforesaid reasons, the appeal is party allowed in the aforesaid terms. The order of the learned Single Judge dated 01.10.2020 passed in WPMS No. 1714 of 2020 is set aside. The writ appeal is disposed off, based on the aforesaid observations and directions. The writ petition is consequently disposed off.