IMPORTANT POINTS
(1) Constitutional courts must defer appreciation of tender documents by employer unless there is mala fide or perversity in understanding or appreciation.
(2) Tendering authority cannot be expected to turn a blind eye to undisputed ground realities and compelling necessities.

JUDGMENT :

K.V. VISWANATHAN, J.

1. Leave granted.

2. This case brings back to memory the classic words of Justice M. Hidayatullah (as the learned Chief Justice then was) in Mahanth Ram Das vs. Ganga Das, (1961) 3 SCR 763. Though it was in the context of the Code of Civil Procedure, dealing with the powers of a Civil Court, the following passage does repay study for the present facts too:

“......Such procedural orders, though peremptory (conditional decrees apart) are, in essence, in terrorem, so that dilatory litigants might put themselves in order and avoid delay. They do not, however, completely e-stop a Court from taking note of events and circumstances which happen within the time fixed. For example, it cannot be said that, if the appellant had started with the full money ordered to be paid and came well in time but was set upon and robbed by thieves on the day previous, he could not ask for extension of time, or that the Court was powerless to extend it. Such orders are not like the law of the Medes and the Persians.....”

(Emphasis supplied)

3. The question which arises for consideration in this case is, on the facts herein, are we to construe Clause 2.22.0 (ix) of the tender conditions as the law of the Medes and the Persians - rigid and unalterable, even if the justice of the cause warranted otherwise?

4. Clause 2.22.0 (ix) reads as under:

“(ix) L-I shall submit the demand draft/BG or FDR additional performance security in the office of the Executive Engineer, Lower Wardha Project Division, Wardha within 2 days of opening of envelope-2. This duration of 2 days will not be relaxed under any circumstances. Failure to do so will result in forfeiture of EMD and the contractor/Joint Venture (jointly or individually) shall be debarred from participating in any bid of Water Resources Department/VIDC, Nagpur for two years from date of opening of envelope-2. If L-1 fails to submit to additional performance security within prescribed time period then Executive Engineer ask L-2 in writing and if L-2 bidder agree to do work at the rate quoted by L-1 then L-2 bidder shall be considered for acceptance.”

(Emphasis supplied)

Relevant Facts

5. The facts that give rise to the question are short and interesting. On 18.01.2021, the Executive Engineer, Lower Wardha Project Division, Wardha issued a tender calling upon interested bidders to submit their bid. The work, which was the subject matter of the writ petition before the High Court, was for “construction of land development works (Part-I) of Gadegaon main minor offtaking @ R.D. 4995 M on Nandgaon Dy.” Three bidders submitted their bids. The technical bid was opened on 08.02.2021 when the appellant, and the first respondent herein (writ petitioner before the High Court) were found eligible. The financial bid was opened on 12.03.2021 and the appellant’s bid was found to be the lowest.

6. Under Clause 2.22.0 (ix), as set-out above, the appellant was to furnish the additional performance security within a period of two working days. It is not disputed that 13.03.2021 was a Saturday and 14.03.2021 was a Sunday and hence two working days would expire only on 16.03.3021. It is also not disputed that there was a nationwide employees strike in the nationalised banks on 15.03.2021 and 16.03.2021.

7. The additional performance security was submitted on 17.03.2021. The tendering authority, after satisfying itself of the existence of the strike, accepted the bid of the appellant and issued work order on 07.05.2021. Thereafter, the work commencement order was issued on 24.05.2021 to the appellant.

Findings of the High Court on Clause 2.22.0 (ix)

8. Aggrieved, the first respondent herein filed a writ petition on 29.04.2021 challenging the work order and the work commencement order. That writ petition has been allowed by the Division Bench of the High Court through the impugned order wherein the High Court has held, with respect to Clause 2.22.0 (ix):

(a) that condition prescribed in Clause 2.22.0 (ix) was