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2012 Supreme(Pat) 951
IN THE HIGH COURT OF JUDICATURE AT PATNA
JAYANANDAN SINGH, J.
Awadhesh Prasad S/O Sri Laxmi Chandra Prasad Resident Of Village:-Mamurabad, At & P.O.:-Mirchaiganj, P.S.-Nalanda, District-Nalanda, State-Bihar. – Petitioner
Versus
The State of Bihar through the Secretary of Minor Water Resources Department, Bihar, Patna-1 – Respondent
Civil Writ Jurisdiction Case No.17210 of 2011
Decided On : 25.7.2012
For the Petitioners: Mr. Manish Sahay.
For the Respondents: Mr. Tej Bahadur Singh.
The contractor had a choice to file an affidavit with either of the two stipulations, not necessarily both, as per the interpretation of the tender notice clause.
Headnote:
Tender Affidavit - Rejection of Technical Bid - The court interpreted the tender notice clause requiring the submission of an affidavit, finding that the contractor had a choice to file an affidavit with either of the two stipulations, not necessarily both. The rejection of the tender was deemed arbitrary and on non est ground.
Fact of the Case:
The petitioner's technical bid was rejected for not furnishing an affidavit stating that he is not restrained from taking part in tenders by the works department. The petitioner sought a direction to produce the order and quash the same.
Finding of the Court:
The rejection of the tender was found to be arbitrary and on non est ground. However, the court did not quash the work already awarded to the intervener respondent in public interest.
Issues: The issues involved the rejection of the petitioner's technical bid and the subsequent award of work to the intervener respondent.
Ratio Decidendi: The court interpreted the tender notice clause, finding that the contractor had a choice to file an affidavit with either of the two stipulations, not necessarily both.
Final Decision: The writ application was allowed with a direction to the State to pay Rs.20,000 as cost and compensation to the petitioner for the wrong caused to him on account of arbitrary action of its concerned officials.
In this writ application, petitioner is aggrieved by rejection of his technical bid by the respondents on the ground that he had not furnished the affidavit that “he is not restrained from taking part in tenders by works department”. Since he could not get a copy of the order, he has also prayed for a direction to the respondents to produce the said order and to quash the same.
2. In the counter affidavit filed by respondent no.5, decision of the Committee has been produced as Annexure-B. In respect of the petitioner, it shows that his technical bid was rejected on the ground that he had not filed an affidavit in respect of ^^fufonk esa Hkkx ysus ls jksd**. Tender notice has also been placed on record by the said respondent as Annexure-A with the counter affidavit. Clause 15 of the tender notice reads as follows : -
^^15- fufonknkrk dks fdlh Hkh dk;Z foHkkx }kjk fufonk esa Hkkx ysus ls jksd ugha@dkyh lwph esa ‘kkfey ugha gksus ds lanHkZ esa ‘kiFk&i= ewy esa lefiZr djuk vfuok;Z gksxkA**
3. This clause shows that the tenderer had to file an affidavit in either of the respect that he had not been debarred from participating in any tender or he had not been included in the black-list. In clause 15, two expressions are bifurcated by a slash (/). This Court looked for the true import of slash (/) on the Internet and, on the web site “en.wikipedia.org/wiki/slash-(punctuation)#In.English.Text”, it found definition of slash (/) and its use in English language, which is given as under :
“The slash (/) is most commonly used as the word substitute for “or” which indicates a choice (often mutually exclusive) is present.”
4. Thus, it is apparent that two requirements of affidavit, namely, affidavit in respect of contractor not being debarred from participating in a bid and an affidavit to the effect that the contractor has not been included in the black-list were mutually exclusive and alternative to each other and the contractor had a choice to file affidavit with either of the two stipulations.
5. Petitioner has asserted, which has not been denied by the respondents, that he had already filed an affidavit with his tender papers that he has not been included in the black-list.
6. Learned Additional Advocate General No.7 made an endeavour to advance the proposition that the affidavit to the effect that the tenderer was not included in the black-list was not enough and he had also to file an affidavit that he had not been debarred from participating in the tender.
7. In view of the use of slash (/) in clause 15 between these two expressions and its common use in English language, this Court is unable to accept the submissions of learned Additional Advocate General. This Court finds that putting a slash (/) between two expressions of clause 15 was a clear indication that the tenderer had to file an affidavit with either of the two statements and not necessarily both. Admittedly, petitioner had filed an affidavit that he had not been included in the black-list. Hence, clearly requirement of clause 15 had been fulfilled by the petitioner. Rejection of the tender of the petitioner, as noticed above, was therefore arbitrary and on non est ground.
8. However, learned Additional Advocate General has pointed out that the technical bid was opened in the matter on 9.9.2011 and financial bid was opened on 14.9.2011. Result of the opening of financial bid was declared on 16.9.2011 and agreement was entered into with the intervener respondent on 19.9.2011. Work order was also issued to the intervener respondent on 20.9.2011 and site was also handed over with clear stipulation to complete the work by 12.9.2012. He submitted that the intervener respondent has already commenced the work. He pointed out that the petitioner had filed this writ application on 26.9.2011 and the same was taken up for the first time on 19.10.2011 when this Court, while directing the respondents to file counter affidavit, stayed further proceedings in respect of the NIT.
