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Supreme Court Of India
Arijit Pasayat,Mukundakam Sharma
SORATH BUILDERS
Versus
SHREEJIKRUPA BUILDCON LIMITED
Decided On : 02/20/2009
(b) Contractual law – Appellant’s bid lowest, reasonable tenable, plausible and valid – University rightly accepting the same – No fault or arbitrariness – High Court setting aside decision of University – Beyond jurisdiction – Bid of respondent no. 1 submitted late rightly rejected by University, time being of essence of the project. (Para10)
(c) Contractual law – University rejecting bid of respondent no. 1 on ground of late submission – Time being essence of project funds to be utilized by 31st march, 2009 – High Court directing re-tendering – Would further delay the project. (Para 11)
(d) Contractual law – Terms of contract cannot be varied by court – Retendering results in delays as also escalation of cost – Respondent no. 1 negligent and not sincere in submitting his pre- qualification documents within the time schedule – University justified in not opening the tender of respondent no. 1 which was late by three days – No grievance could be made by the respondent no. 1 lapse being due to his own fault – High Court interfered with the entire process as if acting as an appellate authority over the decision of the University – Beyond jurisdiction of the Court – High Court not justified in interfering with the terms and conditions of inviting the tenders and by "rescheduling and directing the process of re-tendering, which would only cause further delay and would increase the burden on the exchequer of the University. (Para 12, 13, 15)
(2007) 10 SCC 33; JT 1998 (8) SC 411 : (1999) 1 SCC 492; JT 2001 (2) SC 524 : (2001) 2 SCC 451 – Relied upon
Facts of the case:
Agricultural University, Gujarat issued a Tender Notice inviting tenders for construction of Veterinary College building at Navsari. The tender notice was widely advertised through publication in newspaper "sandesh", being the largest local daily in the State of Gujarat. The tender notice was also published on the internet.
Three bids were received by the University out of which one was disqualified at the threshold for not having the requisite experience. Out of the remaining two, the bid of the appellant- M/s. Sorath Builders was the lowest. Since the bid of respondent no. 1, Shreejikrupa Buildcon Limited was sent on 01. 12. 2008 i. e. three days after the last date of receiving these documents by the University, i.e., 27. 11. 2008, the bid of respondent no. 1 was not taken into consideration.
Respondent no. 1 filed a writ petition which was allowed.
Finding of the Court:
High Court went beyond jurisdiction in interfering with tendering process of the University.
Result:
Appeal allowed.
MUKUNDAKAM SHARMA, J.
( 1 ) LEAVE Granted.
( 2 ) IN the present appeal what is under consideration is the construction of Veterinary college building at Navsari Agricultural university, Gujarat (hereinafter referred to as "university" ). Since construction of the aforesaid building was required to be done immediately, University released the grant which was going to lapse on 31. 03. 2009. The university issued a Tender Notice No. 20 2008-09 on 21. 11. 2008 inviting tenders for construction of Veterinary College building at navsari Agricultural University, Gujarat. The tender notice was widely advertised through publication in newspaper "sandesh", being the largest local daily in the State of Gujarat. The tender notice was also published on the internet. The notice inviting tenders required the following from the bidders:
a) Pre qualification documents had to be sent by 27. 11. 2008, failing which the tender would be liable for rejection and will not be opened; i) "aa" Class certificate with minimum 80% of the project cost turnover audited in the last financial year 2007-08; ii) Bidding capacity value should be more than project cost; iii) II Building category registration and above. All the above documents have to be readily available with any builder having continuous work for different authorities. b) Last date of "on Line" submitting of "price bid" was 28. 11. 2008. c) Tender fees, Earnest Money Deposit (EMD) and other documents can be submitted by 04. 12. 2008.
( 3 ) PURSUANT to the aforesaid advertisement three bids were received by the University out of which one was disqualified at the threshold for not having the requisite experience. Out of the remaining two, the bid of the appellant- M/s. Sorath Builders was the lowest. One of the terms and conditions of the bid was that pre-qualification documents were required to be sent by 27. 11. 2008. Since the bid of respondent no. 1, Shreejikrupa buildcon Limited was sent on 01. 12. 2008 i. e. three days after the last date of receiving these documents by the University the bid of respondent no. 1 could not have been opened as it was received beyond the time stipulated and accordingly it was not taken into consideration.
( 4 ) THE University considered the following stipulation in the tender: "late date of "on Line" submission of price bid is dated 28/11/2008 upto 18. 00 hrs. All documents, tender fees, registration, bank solvency, bank guarantee and EMD etc. duly scan along with the tender documents should be submitted "on Line". Last date for submission of pre- qualification documents by R. P. A. D. /speed Post is 27/11/2008. Any violation in the above instructions, the tender will be liable for rejection and will not be opened". In terms of and in accordance with the mandate of the tender notice the tender of respondent no. 1 - Shreejikrupa Buildcon limited was not opened. Being so situated, the respondent no. 1 filed a writ petition before the High Court of Gujarat praying for quashing the decision of respondent no. 2 - University dated 8. 12. 2008 considering the respondent no. 1 as disqualified from participating in the tender selection process for the construction of Veterinary College building at Navsari agricultural University, Gujarat.
( 5 ) THE said writ petition was placed before the Division Bench and after looking into the records and after hearing the parties the division Bench held that the University acted arbitrarily in requiring the pre qualification documents to be sent physically so as to reach the University by R. P. A. D. /speed Post by 27. 11. 2008, inasmuch as it meant that the contractor had to send pre qualification documents by the aforesaid mode by dispatching the same latest by 25. 11. 2008. Consequently, the writ petition was allowed and the decision of the respondent no. 2 -University dated 10. 12. 2008 accepting the bid of the appellant was quashed and set aside with a further direction that the University shall issue a fresh tender notice with
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