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SCA/1182820/2008 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 11828 of 2008
=========================================================
GOODWILL
ADVANCE CONSTRUCTION CO. - Petitioner(s)
Versus
STATE
OF GUJARAT & 4 - Respondent(s)
========================================================
Appearance :
MR
KG SUKHWANI for Petitioner(s) : 1,
MR APURVA
DAVE, AGP for Respondent(s) : 1,
NOTICE SERVED BY DS for
Respondent(s) : 1 -
5.
=========================================================
CORAM
:
HONOURABLE
MR. JUSTICE MOHIT S. SHAH
and
HONOURABLE
MS.JUSTICE H.N.DEVANI
Date
: 06/10/2008
ORAL ORDER
(Per
: HONOURABLE MR. JUSTICE MOHIT S. SHAH)
The facts giving rise to this
petition under Article 226 of the Constitution are that the
respondents invited tenders for constructing Canal Syphon Across
River Saraswati at Ch. 247.805 k.m. of Sujlam Suflam, Spreading Canal
at Kherava, Mehsana. The tender conditions, inter alia, read as
under :-
10.0 Earnest Money Deposit
(EMD):
(i) Earnest Money Deposit (EMD)
for the work. The Earnest money deposit shall be drawn in favour of
the Executive Engineer, Sujalam Suflam Dn. No.2, Visnagar and shall
be in the form of :
Fixed deposit receipt, deposit at
call receipt or account payee demand draft amounting to Rs.21.00 lacs
from any Nationalised Bank.
(ii) Demand Draft for EMD &
Tender fee shall be submitted in electronic format only through
online (by scanning) while uploading the bid. This submission shall
mean that EMD & tender fee are received for purpose of opening
the bid. Accordingly offer of those shall be opened whose EMD &
tender fee is received electronically. However for the purpose of
realization of D.D. bidder shall send the D.D. in original through
personally in sealed cover so as to reach to Executive Engineer,
Sujalam Suflam Dn. No.2, Visnagar before date 18.09.2008 upto 18.00
hrs. Penaltative action for not submitting D.D. in original to E.E.
by bidder shall be initiated. D.D. for Exemption Certificate is not
necessary. However, Exemption Certificate shall have to be submitted
electronically through online.
Any documents in supporting of
tender bid shall be submitted in electronic format only through
online (by scanning etc) & hard copy will not be accepted
separately.
(iii)Cheque shall not be
accepted.
(iv) Valid EMD exemption
certificate shall be accepted. … … … …
2. The petitioner herein
submitted EMD in the form of D.D. for a sum of Rs.21 lacs from a
nationalised bank. In the present petition, the petitioner has
prayed for a direction to the respondents to open the bids of only
those bidders who have furnished EMD of Rs.21 lacs by way of FDR or
DD of a nationalised bank and not to open price bids of bidders who
have not furnished the EMD of Rs.21 lacs in the form of FDR or DD of
a nationalised bank.
3. While issuing notice on
23.09.2008, the respondents were directed not to open the price bids
of the bidders who had not paid or deposited the EMD.
4. In response to the notice,
affidavit-in-reply has been filed by the Superintending Engineer,
Sujlam Suflam, Circle No.2, Kherava, Mehsana pointing out that the
tender conditions permitted furnishing EMD either in the form of DD
or FDR of a nationalised bank or valid EMD Exemption Certificate. It
is further stated that at the pre-bidding conference held on
10.09.2008, a clarification was made that DD or FDR shall be of a
nationalised bank because the respondent authorities wanted to make
it clear that FDR or DD of a co-operative bank shall not be accepted.
It is specifically stated in the reply affidavit that the respondent
authorities never intended to do away with sub-clause (iv) of Clause
10 stating that valid EMD Exemption Certificate shall be
accepted.
5. Mr Sukhwani for the
petitioner has submitted that since sub-clause (i) specifically
provided that FDR or DD shall be from any nationalised bank, there
was no need for any clarification and that the clarification was
issued on 10.09.2008 only because one of the bidders had inquired
whether EMD Exemption Certificate shall be accepted or not.
6. The minutes of the pre-bid
meeting held on 10.09.2008 are produced at Annexure-B to the petition
and the relevant item reads as under :-
Points
Clarification
(3)
Provision
for form of EMD MENTIONED A at differs.
(3)
FDR
or DD of Nationalised Bank.
A bare perusal of the above
item clearly indicates that there was no reference to EMD Exemption
Certificate and therefore, it can never be contended that the
respondent authorities had done away with valid EMD Exemption
Certificate as one of the acceptable forms of EMD.
7. The learned counsel for the
petitioner, however, submitted that it would amount to discrimination
if the bidders submitting DDs or FDRs are required to give such EMD
amounting to Rs.21 lacs, but Exemption Certificate can be obtained by
depositing Rs.7.50 lacs.
8. It was open to the petitioner
also to submit a valid EMD Exemption Certificate. The petitioner
having himself furnished EMD in the form of DD of Rs.21 lacs from a
nationalised bank cannot now be permitted to make any grievance
against acceptance of tenders with valid EMD Exemption Certificate as
per sub-clause (iv) Clause 10 of the tender conditions.
9. Mr Sukhwani for the
petitioner relied on the decision of a learned Single Judge of this
Court in Senior
Regional Manager, FCI Vs. Sunil Agencies, Kutch, 2003(2) GLR 1020
in support of the contention that there has to be strict compliance
with the tender conditions and that the variation is not permissible
even in case of the lowest bidder.
10. That was a case where the
tender conditions required DD of a scheduled bank and the concerned
lowest bidder had submitted DD of a non-scheduled bank.
In the facts and circumstances
of the present case as indicated earlier, the tender conditions did
permit acceptance of valid EMD Exemption Certificate and therefore,
the decision cited on behalf of the petitioner does not advance
the petitioner’s case any further.
11. On the contrary, in M/s.
G.J. Fernandez Vs. State of Karnataka, AIR 1990 SC 958,
the Apex Court has held that the rule of invalidation of grant of
contract on account of relaxation of pre-qualification does not
readily apply where attempt of applicant is to gain immunity from
competition.
In the first place, the
petitioner has not made out any case of relaxation as discussed
above. Secondly, what the petitioner is seeking by invoking writ
jurisdiction of this Court is to gain immunity from competition with
those who submitted valid EMD Exemption Certificates. As pointed out
by Mr Apurva Dave, learned AGP for respondent No.1, out of 10
tenderers, 8 parties have submitted EMD in the form of valid EMD
Exemption Certificate and therefore, if the petitioner’s case is
accepted, there will be only two bidders left in the fray. In view
of this factual position also, it is obvious that the petitioner is
seeking to gain immunity from competition with as many as 8 other
bidders.
12. In view of the above
discussion, we do not find any merit in the petition and the petition
is, therefore, summarily dismissed.
Ex-parte ad-interim relief
granted earlier stands vacated.
(MOHIT S. SHAH, J.)
(HARSHA N.DEVANI, J.)
mrpandya*
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