ORDER
Dipak Misra, J.
1. Invoking the extra-ordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India the petitioner has prayed for issuance of a direction to the respondents to open the tender submitted by the petitioner and further to consider the offer of the petitioner in accordance with law and award the work in his favour as his offer is the lowest. There is a further prayer to conduct an enquiry with regard to the conduct of the respondent No. 5 and to grant any other relief/reliefs as may deemed just and proper in the facts and circumstances of the case.
2. The facts as have been exposited in the writ petition are that the petitioner is a Class V contractor and is registered with the Water Resources Department. The competent authority of the Water Resources Department had published a notice inviting tenders in the month of November, 2000 for the construction of Panda Tank which was valued at Rs. 59.60 lacs. The petitioner participated in the bid and his offer was the lowest. He was awarded the work by the respondent No. 5, Chief Engineer, Sagar. While the petitioner was carrying on the said work, concerned Department again issued a notice inviting tender for similar project relating to construction of Hathna Tank, vide NIT No. 2/2001-2002, dated 24-5-2001. A copy of the notice inviting tender has been brought on record as Annexure P-1. As per the said tender notice the date of receipt of tender was 26-7-2001 and the date of opening the tender was 2-8-2001. It is putforth that work involves Rs. 53.80 lacs to be completed in 18 months including the rainy season.
3. According to the writ petitioner to obtain the tender documents the
pre-requisites are that a person or a firm has to deposit the registration certificate in the necessary class along with income tax clearance certificate. The petitioner submitted his registration certificate and income tax clearance certificate along with his application with the requisite amount of Rs. 3500/-and the same were submitted along with an application for supply of the tender documents in question. The application for the supply of tender form along with annexed documents was duly approved by the competent authority issuing tender and the same had been duly marked on the application itself approving the issue of tender forms to the petitioner. The petitioner submitted his offer along with the required details of work done earlier and the experience which was required for the post qualification. It is averred in the writ petition that it has always been the practice of the department that the registration and income tax clearance certificate are always taken before supply of the tender documents without which it is not possible for any person to obtain the tender forms. It is pleaded in the petition that Clause 2.1.2 deals with opening of a tender and the said clause clearly stipulates that only those bidders who fail to qualify in post-qualification shall not be considered and their bids would be considered as non-respective. “Post qualification” as per the tender conditions are contained in Annexure 3 annexed with the tender and it pertains only to the experience, financial turnover, physical turnover, bid capacity and the nature of work executed earlier by the tenderer. Once tender forms have been supplied to the bidder after submission of registration and income tax clearance certificate, the same has to be opened for the purpose of post qualification bid. It is setforth in the petition that the tenders were opened on 2-8-2001. The respondent No. 5 was due to retire in the same month itself and had always wanted to somehow extend undue benefit to the respondent No. 6. The petitioner learnt through his representatives present at the time of opening of tender that his bid was not being opened due to non-supply of registration as well as income tax certificates. He immediately faxed a letter on the same day pursuant to the telephonic discussions with the respondent No. 5. The petitioner clearly informed the respondent No. 5 that non-opening of the tender was illegal and unjustified since copies of registration and income tax clearance certificates had already been submitted and were on record with the respondent No. 5 who after due satisfaction and verification of the same had himself authorised for issuance of tender documents from his office. It is the case of the petitioner that for the earlier work tender forms were supplied to the petitioner under the authorisation of the respondent No. 5 after submission of registration and income tax clearance certificates and thereafter a letter was issued to him to produce the relevant documents, after his bid was accepted. It is averred in the petition that the respondent No. 5 who had followed a different procedure in respect of the previous work has adopted a different one in regard to the present work in question and he has, in a most arbitrary and mala fide manner, done so as he was to retire on 31-8-2001. It is
also putforth that as the respondent No. 5 has taken the decision on the last date before his superannuation his entire action is vitiated. It is also urged in the petition that the petitioner is already executing a similar work and hence, it does not lie in the mouth of the respondent No. 5 to doubt the registration of the petitioner as a contractor, and insistence on the accompanying of documents which were already filed at the time of issuance of tender has no legs to stand upon. With the aforesaid averments the relief/reliefs have been sought for as has been indicated hereinabove.
4. A return has been filed by the respondent Nos. 1 to 4 contending, inter alia, that the tender forms were delivered on 24-5-2001 and they were received on 26-7-2001. It has also been pleaded that the tender forms itself stipulates that income tax clearance certificate and other documents are to be submitted alongwith the form. It has been putforth that Rule 2 specifies the period of validity of the offer and in the case at hand, the tender in question was less than Rs. 1 crore and, therefore, has to be finalised within a period of four months. As the petitioner’s tender form was not in conformity with the terms and conditions of the Notice Inviting Tendr his offers were not opened. According to the said respondents, two tender forms were opened on 2-8-2001 as the same had met the requisite qualification. The offer of respondent No. 6 being the lowest was accepted by the Chief Engineer on 2-8-2001. The matter was sent to the Executive Engineer, Damoh for scrutiny, who in his turn, after due scrutiny returned the same on 17-8-2001 and the matter was finalised on 31-8-2001. It has been setforth that the finalisation has nothing to do with the date of superannuation of respondent No. 5. It is the case of the said respondents that the assertion that on earlier occasion the tender form of the petitioner which was incomplete had been accepted by the respondents and he was given the work is incorrect inasmuch as the petitioner while submitting his tender form had complied with all the requirements. It has been asseverated in the return that the respondents are prepared to produce the original record to highlight the said aspect. It has been setforth that though the petitioner is a registered contractor with the Water Resources Department in Class V category, every time when the tenders are floated by the Department, credentials of the tenderers are to be checked as per rules. It is urged in a categorical manner that the Notice Inviting Tender does not stipulate that the income tax clearance certificate and registration certificate are to be submitted at the time of purchase of tender. It is also highlighted that para 2.1.1 of the NIT clearly stipulates that Envelope ‘A’ shall contain the valid registration or letter of permission to purchase the bid documents from the competent authority, attested income tax clearance certificate for the last year and valid earnest money. Para 2.1.3 clearly lays down that after opening of envelope ‘A’ if it is complete in all respects, envelope ‘C shall be opened. There is no provision for relaxation or waiver of requirement as stipulated in the NIT. Various other averments have been made in the return disputing the allegations and asser-
tions made in the writ petition which need not be stated in detail. It has also been putforth that there was no malafide on the part of respondent No. 5, and in fact, action was taken as warranted under circumstances.
5. I have heard Mr. R.N. Singh, learned senior counsel alongwith Mr. Arpan Pawar for the petitioner and Mr. A.S, Raizada, learned Government Advocate for respondent Nos. 1 to 4.
6. It is submitted by Mr. Singh, learned senior counsel that when the petitioner had submitted the registration certificate and the income tax clearance certificate at the time of purchase of tender form, the respondents should have considered his offer given in other envelopes and should not have rejected the case at the threshold. It is also putforth by him that this has been the practice to check the documents at the time of sale of tender forms and accordingly the petitioner did the same and, therefore, no fault can be found with his conduct. The learned senior counsel has further urged that in previous years when these documents were not supplied by the petitioner, the communications were made to him to rectify the defects but the said procedure was given a go by this year as respondent No. 5 was desirous of extending the favour to respondent No. 6.
7. Resisting the aforesaid submissions of Mr. Singh, it is submitted by Mr. Raizada, learned counsel for the State, that the Notice Inviting Tender clearly stipulates the terms and conditions and there is a postulate that the documents are to be provided alongwith the tender form and not to be submitted at the time of purchase of tender. It is studiedly canvassed by Mr. Raizada that if a condition of this nature is provided in the NIT and that goes to the very root of the matter, the same cannot be relaxed or waived by the State Government or its instrumentalities. Learned counsel has further submitted that at no point of time the petitioner or anyone else was permitted to rectify the defects at a later stage and the records do show otherwise. Alternatively, it has been argued by him that assuming that the same had been done in the past the petitioner cannot claim as a matter of right inasmuch as a practice docs not become law because it was done at one point of lime in the past.
8. It is not disputed at the Bar that the petitioner had not produced the income tax clearance certificate and the registration certificate alongwith the tender form. The heart of the matter is whether such was the requirement as per NIT. The Notice Inviting Tender has been brought on record as Annexure P-2. The relevant clause of the Tender Notice is Clause 2.1.1 which deals with the submission of tender. The said clause reads as under:–
“2.1.1. Submission of Tender.– Tenders with post qualification of tenderers : The tenderer may quote for works as per details given above. The Tender shall be received in two envelope system.
“Envelope A” shall contain the valid registration or letter of per-
mission to purchase bid document from the competent authority, attested Income Tax Clearance Certificate for last year and valid earnest money in one of the prescribed form as emulated in para 2.5.1.
“Envelope C” shall contain post qualification details in prescribed proforma as per Annexurc 3 duly certified by the officer not below the rank of Executive Engineer along with price bids in the prescribed tender document purchased by the tenderer.
“Envelope A & C” shall be sealed and marked/written respectively earnest money, registration, technical bid and price bid (rates). Both these sealed envelopes shall be submitted in an outer sealed envelope clearly mentioning the name of the work for which tender is offered.
The outer envelope shall be submitted/received in the offices as mentioned in para 2.1 upto 15.00 hrs. on the due date i.e. the day of receiving the tenders.
If the date of receipt of tenders happens to be a holiday, the lenders will be received, on the next working day upto 15.00 hours. Tenders received late on account of any reason whatsoever will not be considered & returned to the tenderer unopened. Telegraphic tenders will not be entertained. All the lenders received will be collected in the office of the officer who is competent to accept the lender and shall be kept in his safe custody,”
At this juncture it is also relevant to reproduce Clause 2.1.3 of the Notice Inviting Tender :
“2.1.3. First outer envelope shall be opened and then envelope ‘A’
shall be opened. After opening of envelope ‘A’ if the valid registra
tion/permission, income tax clearance certificate and earnest money
of required amount in prescribed form is found in order then envelope
‘C’ shall he opened on the same day in presence of the respective
tenderers or their authorised representative, who choose to be
present.”
9. Mr. Singh, learned senior counsel, would like this Court to interpret the said stipulation to the effect that the documents relating to registration certificate and the income tax clearance certificate have to be produced at the time of purchase of tender. On a proper scrutiny of the language employed in the aforesaid clauses it is absolutely unequivocal, unambiguous and categorical that the said documents are to be submitted in envelope ‘A’. It is worth-noting to state here that the earnest money has also to accompany the said documents. When both the clauses are read in proper perspective it becomes plain as noon day that the said documents had to accompany the tender form, and to be
contained in envelope ‘A’. It is also quite vivid that after envelope ‘A’ is found to be in order then only envelope ‘C shall be opened. Thus, the documents have to accompany envelope ‘A’ and that is a condition precedent. In this context, I may profitably refer to the decision rendered in the case of Umesh Kumar Tiwari v. Union of India and Anr., 2001 (2) MPLJ 596, wherein this Court considering the totality of circumstances in the said case held as under :–
“There was clear mention in the advertisement that an incomplete
tender in Form ‘A’ would disentitle the tenderer for getting his
financial offer to be considered. Filing of income tax clearance
certificate requirement could not be regarded as a minor mistake
which could have been rectified. This was not a clerical or arithmeti
cal error. It was a condition precedent as per the Notice Inviting
Tender for consideration of the offer of an offeree. The condition
being essential and stipulation being expressed in the advertise
ment, the authorities could not have transgressed the same and
entertain the tender which was incomplete. The instructions which
were given in the Notice Inviting Tender are to be followed
scrupulously for the simple reason following of such instructions
ensures prevalence of rule of law. The matter would be different
where a power to relax or waive the conditions exist in the Notice
Inviting Tender itself. The matter would also be different if a mere
clerical error has crept in but when certain conditions precedent are
imposed and there is non-compliance, an offeree cannot claim that
his offer should be considered and owner should not be hyper
technical in not considering his offer. It cannot be lost sight of that
a State action has to be transparent and cannot brook any unfair
ness, unreasonableness or unarbitrariness. Judged from these
angles action could not be faulted. The petitioner did not produce
the income tax clearance certificate and filed the affidavit as con
tained in Annexure P-4 wherein it had been mentioned that if the
offer of the petitioner was accepted he would reproduce the requi
site certificate within 48 hours. Thus, the petitioner had super
imposed a condition of his own which was not permissible. Consider
ing from this angle also the action of the respondent No. 2 is beyond
reproach.” (Quoted from the placitum)
10. I have referred to the aforesaid decision though the same was delivered in a slightly different context but, in my considered opinion, the ratio of the said decision applies in full force and in all fours to the present factual matrix. As envelope ‘A’ did not accompany the necessary documents which are quite material, the tender of the petitioner contained in envelope ‘C could not
be opened. The lacuna cannot be regarded as a clerical or arithmetical one. It is a lacuna which is in the realm of substantive defects. Hence, I do not find any faults with the act of the respondents in rejecting the tender of the petitioner.
11. The next submission of Mr. Singh is that respondent No, 5 was to retire on 31-8-2001 and he took the decision on that date. On a perusal of the return it transpires that the tenders were opened on the date fixed and there was some deliberation and later on lowest tender has been accepted. Hence, the question whether the respondent No. 5 finalised the matter on the last day of his working pales into insignificance.
12. The next facet of argument of Mr. Singh is that in earlier years the petitioner was allowed to rectify the similar defects. The same has been refuted and controverted in the counter affidavit. Be that as it may, even if rectification was allowed in the past that would not enure to the benefit of the petitioner in praesenti because such rectification is impermissible. A mistake or error having been committed cannot be permitted to be perpetuated.
13. As all the submissions raised by Mr. Singh are sans substance, the writ petition fails and the same is dismissed without any order as to costs.