The court applied the doctrine of verba chartarum fortius accipiuntur contra proferentem to interpret the tender document against the respondent, highlighting the principle of resolving ambiguity in the wording of a contract against the party who prepared it.

JUDGMENT :

Sri Vipin Sanghi, J.

The present writ petition has been preferred by the petitioner under Article 226 of the Constitution of India to, firstly, assail the letter bearing no.703/Khanan/Nivida (2020-21) dated 11.01.2021, whereby the petitioner’s allotment of mining contract for mining lot Mahendrapur for the period 2020-25 was cancelled. After amending the writ petition and impleading respondent no.5, the petitioner also assails the communication dated 28.01.2021, bearing letter no.769/Khanan/Nivida, whereby the respondent-authorities sought to make the allotment of the said mining lot in favour of respondent no.5. The petitioner seeks a mandamus to respondent nos.2 and 3 to permit him to deposit the amount of first installment along with the security money in accordance with the procedure prescribed in the tender conditions contained in the tender document.

2. The case of the petitioner is that the respondent issued a public tender in respect of mining lot Mahendrapur, District Tehri Garhwal vide tender no. 95/nl@rhu-05 (2020-21), dated 24.08.2020. The petitioner participated in the said tendering process and emerged as the highest bidder. The respondents vide letter dated 21.12.2020 required the petitioner to make a deposit of Rs.41,82,831/-, being the first installment which was computed as 1/9th of the total amount payable by the petitioner for the contract, within one week, whereafter the MoU would executed. The respondents also demanded the security deposit of Rs.55,77,108/- in the form of fixed deposit or bank guarantee valid for a period of five years.

3. The case of the petitioner is that under the terms of the tender, the mechanism of payment was clearly stipulate in Clause 9(VIII) of the terms and conditions contained in Part-2 of the tender document under the heading “Technical Specifications”. The said clause reads as follows:-

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4. The petitioner submits that the petitioner was once bitten, and therefore, twice shy. The petitioner submits that in relation to another mining lot Saarna 17/1, in respect whereof the petitioner emerged as H1 bidder, the petitioner was similarly required by the respondent to make deposit of the first installment even before the execution of the MoU, which the petitioner did on 27.11.2020. The respondents, however, did not permit the petitioner to start the mining operation up till 27.01.2021, on account of the fact that they did not have the renewed lease in their favour from the State Government, and the consequent right to grant the mining contract.

5. When the respondent-Garhwal Mandal Vikas Nigam (for short “GMVN”) issued the communication dated 21.12.2020, the petitioner met the officers of the respondent- GMVN and brought to their notice the aforesaid tender condition contained in Clause 9(VIII), in terms whereof, the liability to deposit the performance security and the first installment would arise upon execution of the MoU, and not before it.

6. Learned Senior Counsel for the petitioner submits that the petitioner was forced to adopt the said stand, on accou