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2013 Supreme(J&K) 662
HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Ali Mohammad Magrey, J.
Gousia Fayaz (M-s) -Appellant
Versus
SKIMS & Anr. -Resopndent
OWP No. 1010 of 2013 & CMP No. 1616 of 2013
Decided On : 02-12-2013
F.A. Bhat, Shah Amir.
The judgment established the principle that essential conditions of eligibility in tender notices cannot be waived and must be enforced rigidly by the authority.
Headnote:
Mandamus - Works Contract - [AIR 1991 SC 1579, Appeal (Civil) 4613 of 2006, AIR 1993 Andhra Pradesh 327, 1964 Bombay 351, WP(C) No.2043 of 2010-V] - The court discussed the essential conditions of eligibility in tender notices and the authority's power to waive ancillary or subsidiary conditions. The judgments highlighted the importance of adhering to essential conditions and the authority's discretion to deviate from ancillary conditions. The court emphasized that essential conditions cannot be waived and must be enforced rigidly.
Fact of the Case:
The petitioner sought a writ of Mandamus to secure a works contract for sanitation of a hospital, claiming to be the lowest tenderer. The respondents required the tender fee to be in the form of a bank draft deposited by a specified date. The petitioner's bank draft was dated after the prescribed date, leading to the rejection of the tender.
Finding of the Court:
The court found that the condition regarding the tender fee was essential for eligibility to participate in the tendering process. It emphasized that the authority could not waive this condition and must enforce it rigidly.
Issues: The main issue was whether the condition regarding the tender fee could be considered ancillary or subsidiary, and if it could be waived by the authority.
Ratio Decidendi: The court held that essential conditions of eligibility in tender notices cannot be waived and must be enforced rigidly. It emphasized the distinction between essential and ancillary conditions, highlighting the authority's discretion to deviate from ancillary conditions.
Final Decision: The petition was dismissed as the court found no merit in the petitioner's claim, emphasizing that the essential condition regarding the tender fee had to be adhered to.
2. The case of the petitioner, as put forth in the writ petition, is that respondents issued Notice no. SKIMS-MC-04 of 2013 dated 12.06.2013, appended as annexure `E' to the petition, inviting tenders for allotment of contract of sanitation of SKIMS Hospital, Bemina, Srinagar, for one year. The last date for receipt of tender documents was fixed as 06.07.2013 up to 3 PM and the date of opening was fixed as 08.07.2013 at 2 PM. According to the petitioner, the tender fee prescribed for the tender documents was fixed at Rs.2,000.00 and the earnest money in the shape of CDR as Rs.1,00,000.00. It is the further case of the petitioner that he downloaded the tender documents from the net and submitted his tender on 06.07.2013 alongwith earnest money of Rs.1,00,000.00 as CDR as also Bank Draft of Rs.2,000.00. On opening of the tenders, the petitioner was declared as the lowest and, therefore, a successful bidder.
3. The grievance of the petitioner is that the work is not being formally allotted to him and that he is being told that along with the Tender Notice a letter dated 12.06.2013 had been issued which provided that the tender fee of Rs.2,000.00 should be in the shape of Bank draft to be deposited within 03.07.2013.
4. Respondents in their reply have stated that the abbreviated tender notice no. SKIMS-MC-04 of 2013 dated 12.06.2013 for outsourcing sanitation jobs of various areas of SKIMS Medical College Hospital, Bemina, was published in two local dailies, namely, Greater Kashmir and Zabarwan Times on 14.06.2013 and 15.06.2013, respectively. As per the above notice, the detailed tender document was to be purchased from the office of Senior Material Management Officer up to 03.07.2013 against tender fee of Rs.2000.00. So, it was explicitly made clear to all the intending tenderers that they could purchase detailed tender documents up to the prescribed date, i.e., 03.07.2013, beyond which date no tenderer / agency could purchase the same. It is further stated in the reply that the Notice Inviting Tender as well as the detailed tender documents were also made available on Website, and the intending tenderers could download the tender document, but it was prescribed that such tenders would be entertained only if the requisite tender fee in the shape of bank draft of Rs. 2,000.00 was within the stipulated sale date, i.e., 03.07.2013, and was accompanied with the tender documents. It is averred in the reply that the Tender Opening Committee, while opening the tenders on 08.07.2013 also rejected two more tenders of one Shri Mushtaq Ahmad Wani and M/s Albani & Co., as the bank drafts on account of tender fee enclosed with their tenders were not within the prescribed sale date of 03.07.2013. It is stated that the bank drafts of these two agencies were dated 04.07.2013 and 06.07.2013, respectively; whereas that of the petitioner was dated 06.07.2013. It is submitted that no right of the petitioner has been infracted; therefore, the writ petition is devoid of any merit.
5. I have heard learned counsel for the parties and considered the matter.
6. On behalf of the petitioner, it was contended that mention of tender fee in the tender notice is not an important condition and is merely a subsidiary or ancillary condition and non-fulfillment of the same would not affect the essential conditions of the tender. It was further argued that the condition
