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2020 Supreme(Guj) 365
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
HARSHA DEVANI, SANGEETA K. VISHEN, JJ.
Shree Sai Cargo – Petitioner
Versus
Division Railway Manager (Commercial) – Respondent
R/Special Civil Application No. 866 of 2020
Decided On : 19-02-2020
Advocate Appeared:
For the Petitioner: Mr Manasvi Thapar for Mr. Aditya P Jhawar
For the Respondent: Mr Akshay A Vakil, Mr FB Brahmbhatt, Mr Siraj R Gori, Mr. Mukesh N Shah, Mr. D H Panchal, Sudhanshu A Jha
Point of Law:
The scheme for leasing of parcel space is not applicable from/to city booking agency to out agency.
Headnote:
Constitution of India,1950 - Article 226 - Respondent has tendered an additional affidavit - petitioner seeks stay of e-tender process pursuant to e-tender notice/detailed notice inviting tender - Petition are that petitioner is a proprietorship firm and is engaged in business of logistics and cargo services for past five years - Petitioner is engaged by various entities for logistics supplies and cargo services and is a regular contractor and insofar as present respondent is concerned petitioner is a regular contractor for leasing SLR for cargo movement - Petitioner that it has been contracting with railways for a long time and is a bona fide contractor for first respondent - Petitioner was registered with first respondent as a registered lease-holder - Held, Court held that bank guarantee in a format not prescribed by it ought to be accepted since that requirement was a non-essential term - Courts take over decision-making function of employer and make a distinction between essential and non-essential terms contrary to intention of employer and thereby rewrite arrangement it could lead to all sorts of problems including one that are grappling with - For example GTC that are concerned with specifically states in Clause that Any bid not accompanied by an acceptable Bid Security/EMD shall be rejected by employer as non-responsive - Surely CCL ex facie intended this term to be mandatory yet High Court held that bank guarantee in a format not prescribed by it ought to be accepted since that requirement was a non-essential term of GTC - From point of view of CCL GTC has been impermissibly rewritten by High Court - Appeal allowed (Para 49)
Facts of the Case:
Petitioner is a proprietorship firm and is engaged in the business of logistics and cargo services for the past five years. The petitioner is engaged by various entities for logistics supplies and cargo services and is a regular contractor and insofar as the present respondent is concerned, the petitioner is a regular contractor for leasing SLR for cargo movement.
Finding of the Court:
Court held that bank guarantee in a format not prescribed by it ought to be accepted since that requirement was a non-essential term - Courts take over decision-making function of employer and make a distinction between essential and non-essential terms contrary to intention of employer and thereby rewrite arrangement it could lead to all sorts of problems including one that are grappling with - For example GTC that are concerned with specifically states in Clause that Any bid not accompanied by an acceptable Bid Security/EMD shall be rejected by employer as non-responsive - Surely CCL ex facie intended this term to be mandatory yet High Court held that bank guarantee in a format not prescribed by it ought to be accepted since that requirement was a non-essential term of GTC - From point of view of CCL GTC has been impermissibly rewritten by High Court.
Result: Appeal allowed
ORDER :
HARSHA DEVANI, J.
1. Mr. Siraj Gori, learned advocate for the first respondent has tendered an additional affidavit. The same is taken on record.
2. By this petition under article 226 of the Constitution of India, the petitioner seeks stay of the e-tender process pursuant to the e-tender notice/detailed notice inviting tender dated 15.10.2019 having reference No.C78/1/117/TENDER/SLR/03/2019-20 issued by the first respondent – Divisional Railway Manager (Commercial), Western Railway, Ahmedabad for leasing of SLR space.
3. The facts, as appearing in the petition are that the petitioner is a proprietorship firm and is engaged in the business of logistics and cargo services for the past five years. The petitioner is engaged by various entities for logistics supplies and cargo services and is a regular contractor and insofar as the present respondent is concerned, the petitioner is a regular contractor for leasing SLR for cargo movement.
3.1 It is the case of the petitioner that it has been contracting with the railways for a long time and is a bona fide contractor for the first respondent. The petitioner was registered with the first respondent as a registered lease-holder of Ahmedabad Division since 19.03.2018. The first respondent put out an e-tender notice, as referred to hereinabove and bids came to be accepted. According to the petitioner, the system was off line for the past years and since this year only, online system was introduced. The petitioner was using the online system for the very first time for bidding the tender. The petitioner submitted its bid on 15.11.2019. The site of the respondent showed the top bids and ranked them accordingly, wherein the petitioner was shown to be the H-1 rank holder, which, in other terms, meant that the petitioner was a top bidder of the said Notice Inviting Tenders (NIT).
3.2 Apprehending the petitioner may have submitted a wrong document due to being naive regarding the usage of IREPS site and a clerical error on its part, whereby, it may have attached a wrong certificate of registration, the petitioner approached this court by way of the present petition, contending that due to the names of GST registration certificate and the railways registration certificate being similarly named in its system, the petitioner may have uploaded the GST registration certificate. However, such an issue had not been raised by the first respondent till the date of the filing of the petition.
3.3 It is further the case of the petitioner that it is a registered user and if it was not a registered user, it could not have submitted the said bid. The bid was to be finalised within forty five days in terms of the clause given in the Instructions for Tenderers. By a letter dated 26.12.2019, the first respondent called upon the petitioner to extend its offer up to 28.01.2020. It is the case of the petitioner that the first respondent has not yet awarded the e-tender or contract to any bidder and that the petitioner apprehends that it may lose the bid due to above-referred clerical error and hence, it has filed the present petition.
4. In response to the averments made in the memorandum of petition, the first respondent has filed an affidavit-in-reply stating that the first respondent has acted as per the norms set out for the purpose of finalizing the tender. That the subject e-tender was uploaded on IREPS (Indian Railway E-Procurement System) on 15.10.2019 at 15:24 hours vide E-tender No.C78-SLR-19-20-3-12957-F1. That the NIT referred to by the petitioner is actually the tender document and not the Notice Inviting Tender. It is further averred that the petitioner just got itself registered as lease-holder under category 'B' over Ahmedabad Division of Western Railways only and that, till date, no parcel lease contract has been awarded to the petitioner by the first respondent.
4.1 It is further stated that when the e-tender was introduced way back in the year 2018 and notice regarding, “Switching over on E-tend
