The literal interpretation of contract terms and the fulfillment of all tender conditions without relaxation by the Tender Committee.

1. Aggrieved by decision of the Tender Committee dated 30.03.2015, the petitionerM/s Wave Industries Private Limited has approached this Court by filing the present writ petition.

2. The petitioner company pursuant to E-tender notice dated 04.03.2015 submitted its bid. The date for opening the technical bid was 27.03.2015 and the financial bid was to be opened on 30.03.2015. The Tender Committee found the petitioner company disqualified in the technical bid on the ground that the certificate issued by the Pollution Control Board was valid only upto 31.12.2014. Mr. Anil Kumar Sinha, the learned Senior counsel for the petitioner submits that submission of the pollution certificate was not a mandatory condition in the Tender. It was not an eligibility condition for the tenderer and therefore, at the time when the technical bid was opened the Tender Committee could have required the petitioner to produce a valid pollution certificate. It is submitted that in view of Section 25 of the Water (Prevention and Control of Pollution) Act, 1974 and Section 21 of the Air (Prevention and Control of Pollution) Act, 1981 even after the expiry of the permission to operate order granted by the Pollution Control Board, an industry can run for another four months and thus, the validity of pollution certificate was extended for another four months. The learned Senior counsel for the petitioner refers to paragraph nos. 1719 in “Rashmi Metaliks Limited and Another vs. Kolkata Metropolitan Development Authority and Others”, reported in (2013) 10 SCC 95 and submits that pollution certificate is only a collateral term.

3. The learned counsel for the respondent State of Jharkhand seriously opposes the writ petition and submits that the petitioner in terms of the tender document was not eligible, on the date when the technical bid was opened and therefore, it has rightly been declared disqualified in technical evaluation.

4. A perusal of the Technical Bid Check List discloses that a bidder should have “valid pollution control certificate issued by the Pollution Control Board of the State”. There is no dispute that the pollution control certificate submitted by the petitioner was valid only till 31.12.2014 and thus, when the petitioner submitted its bid, the pollution control certificate issued in its favour was not a valid one. It is well settled that the terms of contract must be given a plain and literal meaning. It is also well settled that a bidder must fulfill all the conditions of the Tender and it is not open to the Tender Committee to relax conditions of tender in favour of one tenderer. In “Rajasthan State Industrial Development & Investment Corpn. v. Diamond & Gem Development Corpn. Ltd.” [(2013) 5 SCC 470] the Hon'ble Supreme Court has observed as under:

23. “........ Thus, contract being a creature of an agreement between two or more parties, has to be interpreted giving literal meanings unless, there is some ambiguity therein. The contract is to be interpreted giving the actual meaning to the words contained in the contract and it is not permissible for the court to make a new contract, however reasonable, if the parties have not made it themselves. …....................”

5. With reference to the submission based on the decision in “Rashmi Metaliks Limited and Another vs. Kolkata Metropolitan Development Authority and Others” (supra), I find that in the said case, the Hon'ble Supreme Court when found that gross income of a bidder was not one of the essential qualifications for participation in the tender, it was held that even though income tax certificate was not produced by the bidder, the same could have been required from the bidder after the technical bid was opened. The present is not a case similar on facts. The Technical Bid Check List enumerates the essential technical qualification of the bidders. The bidders were not merely required to produce the pollution certificate, its validity must extend to the last date of submission