The judgment established the principle that while essential conditions in tender documents must be strictly enforced, ancillary conditions can be waived depending on the circumstances.

( 1 ) RULE D. B.

( 2 ) WITH the consent of learned counsel for the parties, we have taken up the matter for final disposal at this stage itself.

( 3 ) CHALLENGE in this writ petition is to the decision of the Mahanagar Telephone Nigam ltd. (for short" MTNL") not to open the bid documents submitted by the petitioner in response to their invitation to tender for appointment of contractors for Optical Fibre cables laying by trenching and trenchless technology and allied works. The petitioner seeks a direction to the MTNL to open its techno commercial bid as well as the financial bid and consider the same in the manner contemplated in the notice inviting tender (for short, "the NIT" ).

( 4 ) FACTUAL matrix as projected in the petition, in brief, is as follows: on or about 5 June 2004 MTNL floated a tender for laying Optical Fibre Cables by the aforementioned techniques for a length of around 600 kms. The tender document had two Sections. Section-I, captioned as NIT, inter-alia, contained the basic eligibility conditions, details of area wise works, time and last date of submission of bids and the schedule of Tender. Section-II contained twenty two instructions to bidders. The bid was to be in two parts, namely, Part A - techno Commercial and Part B - Financial. The Financial and Techno Commercial bids were to be submitted in quadruplicate, indicating original, duplicate, triplicate and quadruplicate on the sealed cover/envelope. The eligibility of the bidder was to be considered only at the time of evaluating the commercial and technical bids. In the NIT it was specifically mentioned that the sale of the tender documents would not confer any eligibility or qualification on the purchaser to bid for the tender. As per instruction No. 4 in Section-II, the tender was to be accompanied by an earnest money of amount mentioned in the nit in the form of a demand draft/pay order in favour of the Accounts Officer (MM), MTNL, new Delhi. The said clause stipulated that tenders not accompanied by earnest money shall be summarily rejected. As per clause 11. 1 of Section-II, the tender was to be submitted in a sealed cover. The outer cover was to be superscribed with: (i) Tender No. , (ii) Date of Opening and (iii) Details of Earnest money, without which the tender was not to be opened.

( 5 ) ACCORDING to the petitioner, since the bid was submitted in a hurry on the last date when it was to be opened, inadvertently there was an omission on their part to superscribe on the outer cover of the envelope the date of opening of tender as well as the details of the earnest money, though a demand draft in the requisite sum of Rs. 5,40,000/- was submitted with the tender documents in the sealed cover. The plea of the petitioner is that when they learnt that their envelopes containing the bid were not being opened because of the said omission, they immediately brought to the notice of the officials of the MTNL that the bank draft had been submitted with the tender documents. A xerox copy of the bank draft is stated to have been furnished to them. However, in view of the said omission, the bid submitted by the petitioner was not opened. Hence the present writ petition.

( 6 ) THE writ petition is resisted by the MTNL in the reply-affidavit filed on its behalf, it is stated that all the NIT conditions stipulated in the tender documents were to be adhered to in real perspective otherwise the entire purpose of putting such or any other condition shall have no nexus to the object sought to be achieved. Their stand is that in the tender documents it was clearly mentioned in clause 11. 1, Section-II that the bidders shall superscribe the outer envelope with the tender no, date of opening and details of earnest money deposited, without which the tender was not to be opened and since in the present case the bidder had not scribed the details of the EMD on the outer envelope, its bid was not opened. It is also pointed out that there were altogether 14