Nila Infrastructure Limited & 1 Versus Surat Municipal Corporation & 1
GST
2017 (11) TMI 809 – GUJARAT HIGH COURT – 2018 (11) G. S. T. L. 275 (Guj.)
GUJARAT HIGH COURT – HC
Dated:- 2-11-2017
Special Civil Application No. 18236 of 2017
GST
MR. M.R. SHAH AND MR. B.N. KARIA, JJ.
For The Petitioner : Mr. Mihir Joshi, Sr. ADVOCATE with Mr.Sandeep Singhi, Advocate with Mr. Siddharth Joshi, advoctae for Singhi & co, advocate
For The Respondent : mr. Mihir Thakore, Sr. Advocate With Mr. Mahavir m Gadhvi, advocate And Mr. Prashant Desai, sr. Advocate With Mr Dhaval G Nanavati, Advocate
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE M.R. SHAH)
1.0. Rule. Shri Dhaval Nanavati, learned advocate waives service of notice of Rule on behalf of respondent no.1 and Shri Mahavir Gadhvi, learned advocate waives service of notice of Rule on behalf of respondent no.2. In the facts and circumstance of the case and with the consent of the learned advocates for the respective parties, p
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and the physical bid was to be submitted by 07.04.2017. However, the aforesaid deadlines came to be extended upto 22.06.2017 for the online submission and 01.07.2017 for the physical submission. One of the conditions of the FIR RFP required the bidder to make payment of Rs. 18,000/towards “Bid/ Document Fee”. Pursuant to the first RFP the petitioner no.1 submitted its online bid on 22.06.2017 and the physical bid on 23.06.2017. It is the case on behalf of the petitioners that as per the condition of First RFP, the petitioner no.1 also made the payment of Rs. 18000/towards bid / document fee. It appears that since the petitioner no.1 was the only entity who had submitted its bid in response to the First RFP, the respondent reissued the RFP (hereinafter referred to as 'Second RFP”) on 1.8.2017 for the tender works. As per the conditions of Second RFP, the online bid was required to be submitted on 07.09.2017 and the physical bid was to be submitted by 15.09.20178. The Second RFP also
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greement
Development
Within 15 days of issue of LOI.
It is submitted that pursuant to the Second RFP, the petitioner no.1 submitted its online bid on 07.09.2017 and the physical bid on 09.09.2017. It is the case on behalf of the petitioners that as per the condition of Second RFP, the petitioner no.1 also prepared a Demand Draft of Rs. 18,000/for the payment of Bid/ Document Fee. However, since the respondent had not provided any details pertaining to its GST Registration / GSTIN, the Enterprise Resource Planning (ERP)system of the petitioner no.1, which is GST complaint, provided for the payment of GST @18% on reverse charge basis as per the provisions of Central Goods and Service Tax, 2017, petitioner did not deposit 18% GST. 3.2. It is the case on behalf of the petitioners that thereafter, during the internal audit of the petitioner no.1, the auditor enquired from the concerned office of the petitioner no.1 about the SAC for the service in respect of which the respondent had dem
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fter the petitioner no.1 in good faith, addressed another letter to the respondent on the very next day i.e. 20.09.2017, thereby undertaking to bear any penalty, if any, imposed for late deposit of the amount of GST. That on 21.09.2017, the petitioner no.1 was received back the cover containing the letter dated 19.09.2017 along with the Demand Draft dated 19.09.2017 with an endorsement “Not Accept” and “Refused to accept”. It is the case on behalf of the petitioners that in view of the aforesaid refusal, the petitioner no.1 addressed letter dated 22.09.2017 to the Municipal Commissioner of the respondent Corporation narrating the chain of events and inter alia requesting him to grant an opportunity to the petitioner no.1 to rectify the purported technical irregularity, if any, more so since such opportunities are generally given to bidders in order to keep the competition alive and that the RFP was reissued in the form of Second RFP to achieve the same object.
3.3. It is the case on b
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n disqualified and thereby newly added respondent no.2 herein Siddhi Constructions only remained in fray.
3.5. Feeling aggrieved and dissatisfied with the impugned action of the respondent no.1Surat Municipal Corporation – bid submitted by the petitioner disqualified at technical base solely on the ground that the petitioners had not deposited the bid/ document fee with 18@ GST and thereby to that extent the petitioners were not responsive of the eligibility criteria / terms and conditions of the tender document / notice that bidder was required to deposit the bid / document fee Rs. 18000/with GST @18%, the petitioners have preferred present Special Civil Application under Article 226 of the Constitution of India.
4.0. Shri Mihir Joshi, learned Senior Advocate has appeared on behalf of the petitioners, Shri Prashant G Desai, learned Senior Advocate has appeared with Shri Dhawal Nanavati, learned advocate for the respondent Corporation and Shri Mihir Thakore, learned Senior Advocate h
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as per the law with respect to GST, the payment of GST @18% on reverse charge basis was permissible which the petitioner no.1 did deposit on reverse charge basis before the relevant date of payment of GST under the provision of Central Goods and and Service Tax, 2017. It is submitted that therefore, as such neither there is a any loss to the respondent Corporation nor any consequence on non payment of GST had arisen. It is therefore, vehemently submitted that on mere non payment of GST @ 18% while making the payment of bid / document fee of Rs. 18000/, the petitioners could not have been declared disqualified at the technical bid stage, more particularly, when the amount of GST at 18@ was Rs. 3520/only, against which, the petitioners, as such, paid / deposited Rs. 18000/towards the bid / document fee and Rs. 93,00,000/towards EMD. It is submitted that therefore, action of the respondent Corporation in declaring the bid submitted by the petitioner no.1 as disqualified at technical stage
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y and the others which are merely ancillary or subsidiary to the main object to be achieved by the condition. It is submitted that in the first case the authority issuing the tender may be required to enforce them rigidly, however in the other cases it must be open to the authority to deviate from and not to insist upon the strict literal compliance of the condition in appropriate cases.
5.4. It is further submitted by Shri Mihir Joshi, learned counsel for the petitioners that even otherwise the conditions of payment of Bid/ document / tender fees can neither be said to be a condition of eligibility nor the condition for evaluation. It is submitted that the charges for production of bid document per se is unrelated to bid evaluation. It is submitted that therefore, non payment of aforesaid amount in full (with GST @18% ) cannot be said to be non fulfillment / non compliance of the essential condition relating to eligibility and / or evaluation of the bid on merits.
5.5. It is further
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to have substantially complied with relevant terms and conditions of the eligibility criteria.
5.7. It is submitted that even such lapse if any of non deposit of GST @18% on the amount of Rs. 18000/( bid/ document fee) can be condoned and the bona fide of the petitioner no.1 ought to have been considered favourably by the respondent no.1 Corporation, more particularly, when there is a substantial compliance. It is submitted that even otherwise, such lapse, if any, could have been condoned and could not have resulted into rejecting the bid of the petitioner no.1 at technical bid stage.
5.8. It is submitted that therefore, the rejection of the bid of the petitioners at technical bid is arbitrary, hyper technical, against the public interest since it eliminated competition, which deserves to be quashed and set aside.
5.9. It is further submitted by Shri Mihir Joshi, learned counsel for the petitioners that as such, such condition of deposit of bid / tender fee of Rs. 18000/with GST @
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s reported in (2014) 8 SCC 804. (para 108 to 116 and 138).
(6). Bakshi Security And Personnel Services Private Limited vs. Devkishan Computed Private Limited and Ors reported in (2016) 8 SCC 446.
(7). MHS Infra Tech Pvt Ltd vs. State of Gujarat reported in AIR 2016 (Guj) 16 (para 11).
(8). PES Installations Pvt. Ltd and Anr vs. Union of India and Anr reported in AIR 2015 (Del) 108. (para 1, 17 and 24)
(9). R.G. Holding Pvt Ltd vs. M.T.N.L & Anr reported in 2004(78) DRJ 274 (Delhi).
10. R.G. Holding Pvt Ltd vs. M.T.N.L. & Anr reported in AIR 2005 (Delhi) 134.
6.0. Present petition is vehemently opposed by Shri Prashant G Desai, learned counsel for the respondent Corporation.
6.1. It is vehemently submitted by Shri Desai, learned counsel for the respondent Corporation that admittedly the petitioners did not deposit / pay the entire bid document fee/ bid processing fee of Rs. 21,240/( Rs. 18000/+ 18% GST) which was the mandatory requirement of the terms and condition of the te
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n that as the entire process of inviting tender was through E Tender, if any party, who opens website of the respondent Corporation for the purpose of downloading E Tender Bid Document, then at that time, the first page which is provided to the said party in the Tender Consolidated Details in which bid document process fee is clearly mentioned as Rs. 21240/. For that, Shri Desai, learned counsel for the respondent Corporation has relied upon and drawn the attention of the copy of the “nProcure” Tender Consolidated Details produced along with affidavit in reply. It is submitted that in the said “nProcure” document, it was specifically case that the document fee and EMD Details is mandatory to be paid. It is further submitted that in the said tender, it was also specifically mentioned in Annexure A24 (Instruction to Bidder regarding Tender Fee and EMD)that submission of EMD and Tender fee is for the purpose of opening bid, i.e. offer / tender of those tenderers whose EMD and Tender fee i
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h party who had complied with all the terms and conditions at the initial stage namely deposit of entire amount of bid document fee and the EMD is considered to be the bidder / tenderer and only thereafter bid of such party / bidder is required to be considered. It is submitted that in the present case as the petitioners did not deposit the entire bid fee/ tender fee, no such receipt was generated in favour of the petitioners and therefore, the petitioners are not considered to be the tenderer itself, when technical bid was processed and thereafter the financial bid was opened. It is submitted that therefore, when the petitioners have not been considered to be tenderer itself on non deposit of the entire amount of bid fee / tender fee, there is no question of considering the petitioners as tenderer / bidder.
6.4. It is vehemently submitted by Shri Desai, learned counsel for the respondent Corporation that in the present case E Tender Notice was published on website of the Corporation
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concerned bidder. It is submitted that therefore, when all other bidders could deposit and/or deposited the entire amount of bid document fee / bid document processing fee of Rs. 21240/, the petitioners also to become tenderer / bidder also could have and ought to have deposited the entire bid document fee/ bid processing fee. It is submitted that as per the “nprocure” document, bid document fee/ bid processing fee was stated to be Rs. 21,240/-
6.5. It is vehemently submitted by Shri Desai, learned counsel for the respondent Corporation that in the present case the petitioners submitted bid online on 7.9.2017 and physical bid was received on 14.09.2017. It is submitted that as the petitioners did not pay the full bid document fee, which was mandatory, the petitioners were never considered to be tenderer itself. It is submitted that the petitioners sent the draft of differential amount of Bid document fee after the technical bid was opened on 18.09.2017. It is submitted that therefore
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t petition on 3.10.2017. It is submitted that the petitioners did nothing, more particularly, did not approach this Court immediately after 18/19. 09.2017.
6.7. It is further submitted by Shri Desai, learned counsel for the respondent Corporation that since the petitioners are never considered to be tenderer because of non fulfillment of primary condition of requirement of paying bid document fee as stated in the E Tender Document itself, the question of considering the petitioners as tenderer does not arise. It is submitted that therefore, it can be said that the petitioners are not part of the tender process at all as the petitioners are not considered to be tenderer / bidder at all.
6.8. It is further submitted by Shri Desai, learned counsel for the respondent Corporation that for participation of bid, one of the essential condition was to deposit the entire bid document fee and EMD. It is submitted that therefore, the deposit of entire bid document fee / EMD is an essential condi
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ied upon the unreported decision of the Division Bench of this Court in the case of P. Kavitha vs. State of Gujarat and Ors rendered in Special Civil Application No.4731 of 2017.
6.9. It is further submitted by Shri Desai, learned counsel for the respondent Corporation that the decision taken by the respondent Corporation is absolutely just, legal and absolutely in consonance with the terms and conditions of the tender document, which is neither perverse nor arbitrary and therefore, it is requested not to interfere with the same in exercise of powers under Article 226 of the Constitution of India.
6.10. On scope of judicial review in the contractual matter, Shri Desai, learned counsel for the respondent Corporation has relied upon the decision of the Hon'ble Supreme Court in the case of Michigan Rubber (India) Limited vs. State of Karnataka and ors reported in (2012) 8 SCC 216; in the case of Tata Cellular vs. Union of India reported in (1994) 6 SCC 651; in the case of Jagdish Ma
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id of the petitioners is absolutely just and in consonance with the terms and conditions of the tender. Therefore, relying upon the decision of the Hon'ble Supreme Court in the case of Central Coalfields Ltd (supra), it is requested to dismiss the present petition.
8.0. In reply to the aforesaid submission, Shri Joshi, learned counsel for the petitioners has submitted that as such there is no delay at all in preferring the petition on 03.10.2017. It is submitted that the petitioner came to know only on 03.10.2017 and therefore, the present petition has been preferred on 03.10.2017. It is further submitted by Shri Joshi, learned counsel for the petitioners that as such deposit of the bid document fee cannot be said to be essential condition relatable to eligibility. It is submitted that in the present case the downloading is free of cost and therefore, non deposit of entire amount of bid document fee cannot be construed as non fulfillment of essential condition, for which, the peti
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d document fee / bid processing fee i.e. Rs. 18000/only. At this stage, it is required to be noted that other two tenderers who submitted their bid, paid / deposited the entire document fee / bid processing fee i.e. Rs. 21,240/. Thus, in the tender consolidation details and “nProcure” tender consolidated details deposit of entire amount of document fee and EMD details was mandatory to be paid. Even as mentioned in Annexure A24 (Instruction to Bidder regarding Tender Fee and EMD) submission of EMD and tender fee is for the purpose of opening bid. Therefore, only those parties who paid the EMD and tender fee electronically and thereafter in the physical format within the stipulated time is required to be considered the tenderers / bidders, whose bid is required to be opened and considered on merits subject to fulfillment of other terms and conditions, if any. Thus, as per the “nProcure” tender consolidated detials and as per the instruction to bidders regarding tender, after the tender d
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harge and thereafter the concerned parties who submits the bid, fulfills all the terms and conditions of the “nProcure” tender consolidated details including the deposit of entire bid document fee / bid processing fee and EMD within the stipulated time as mentioned in the tender document, in favour of such party / bidder receipt is generated and on generation of the receipt in the records of the Corporation, such party is considered to be tenderer / bidder and subject to fulfillment of other terms and conditions, if any, its bid is required to be opened and thereafter considered on merits. In the present case, it is an admitted position that as the petitioners did not deposit the entire bid document fee / bid processing fee at the time of submitting the bid / bid document and therefore, no such receipt in favour of petitioner has been generated like in the case of other two bidders who in fact paid the entire bid document fee / EMD and therefore, the petitioners are not considered at a
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Ltd (supra), in para 23 and 24, the Hon'ble Supreme Court has observed and held as under:
“23. From the above decisions, the following principles emerge:
(a) the basic requirement of Article 14 is fairness in action by the State, and nonarbitrariness in essence and substance is the heartbeat of fair play. These actions are amenable to the judicial review only to the extent that the State must act validly for a discernible reason and not whimsically for any ulterior purpose. If the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities;
(b) fixation of a value of the tender is entirely within the purview of the executive and courts hardly have any role to play in this process except for striking down such action of the executive as is proved to be arbitrary or unreasonable. If the Government acts in conformity with certain healthy standards and norms such as awarding of contracts by inviting tenders, in thos
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ted or decision made by the authority is mala fide or intended to favour someone; OR Whether the process adopted or decision made is so arbitrary and irrational that the court can say: âEURoethe decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached ? and;
(ii) Whether public interest is affected.
If the answers are in the negative, there should be no interference under Article 226.”
9.2. In the case of Afcons Infrastructure Limited (supra), again the Hon'ble Supreme Court has occasion to consider the nature and scope of judicial review in the tender matter / contractual matter. In the aforesaid decision, it is specifically observed and held by the Hon'ble Supreme Court after referring the decision of the Hon'ble Supreme Court in the case of Dwarkadas Marfatia and Sons vs. Port of Bombay reported in (1989) 3 SCC 293; Tata Cellular (supra) and Jagdish Mandal (supra) that the Constitutional Courts
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be said to be an essential condition relatable to eligibility on merits and non deposit of entire amount of bid document fee / bid processing fee would not render the petitioners disqualified for considering its bid on merits is concerned, it is required to be noted that as such the respondent Corporation considered it as an essential condition. The respondent Corporation applied has the same unilaterally to all the bidders / persons / parties and other two bidders as such did deposit the entire bid document fee and the EMD. Not only that in the “nProcure” tender consolidated details which was available with the petitioners at the time when the petitioners downloaded the entire E Tender bid document, bid document process fee is stated to be Rs. 21,240/, which also specifically provides that document fee and EMD is mandatory to be paid. Even in the Instruction to Bidder regarding Tender Fee and EMD it has been specifically mentioned that EMD and tender fee is for the purpose of opening
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sions of the Hon'ble Supreme Court on the point are required to be referred to.
10.1. In the case of the Central Coalfields Limited and Another (supra), it is specifically observed and held by the Hon'ble Supreme Court that the Court must, as far as possible, avoid a construction which would render the words used by the author of the document meaningless and futile or reduce to silence any part of the document and make it altogether inapplicable. It is further observed that whether a term of NIT is essential or not is a decision taken by the employer, which should be respected and soundness of that decision cannot be questioned by Court. In the case before the Hon'ble Supreme Court the bid was rejected for non furnishing of bank guarantee in prescribed format. While submitting EMD by furnishing bank guarantee in format prescribed by GTC of another tender and the bidder took the plea that bank guarantee format of present tender was ambiguous. Rejecting the claim of the bidd
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of the administrative action of CCL in adhering to the terms of the NIT and the GTC prescribed by it while dealing with bids furnished by participants in the bidding process. The core issue is whether CCL acted perversely enough in rejecting the bank guarantee of JVC on the ground that it was not in the prescribed format, thereby calling for judicial review by a constitutional court and interfering with CCL's decision.
[33] In Ramana Dayaram Shetty v. International Airport Authority of India, 1979 3 SCC 489 this Court held that the words used in a document are not superfluous or redundant but must be given some meaning and weightage:
“It is a wellsettled rule of interpretation applicable alike to documents as to statutes that, save for compelling necessity, the Court should not be prompt to ascribe superfluity to the language of a document “and should be rather at the outset inclined to suppose every word intended to have some effect or be of some use”. To reject words as insens
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the eligibility condition of being a registered II Class hotelier would not be a bar for consideration, they too would have submitted a tender, but were prevented from doing so due to the eligibility condition, which was relaxed in the case of respondents 4. This resulted in unequal treatment in favour of respondents 4 treatment that was constitutionally impermissible. Expounding on this, it was held: “It is indeed unthinkable that in a democracy governed by the rule of law the executive Government or any of its officers should possess arbitrary power over the interests of the individual. Every action of the executive Government must be informed with reason and should be free from arbitrariness. That is the very essence of the rule of law and its bare minimal requirement. And to the application of this principle it makes no difference whether the exercise of the power involves affectation of some right or denial of some privilege.”
36. Applying this principle to the present appeals, o
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in Ramana Dayaram Shetty were reaffirmed. It was reaffirmed that the party issuing the tender (the employer) “has the right to punctiliously and rigidly” enforce the terms of the tender. If a party approaches a Court for an order restraining the employer from strict enforcement of the terms of the tender, the Court would decline to do so. It was also reaffirmed that the employer could deviate from the terms and conditions of the tender if the “changes affected all intending applicants alike and were not objectionable.” Therefore, deviation from the terms and conditions is permissible so long as the level playing field is maintained and it does not result in any arbitrariness or discrimination in the Ramana Dayaram Shetty sense.
[42] Unfortunately, this Court did not at all advert to the privilegeofparticipation principle laid down in Ramana Dayaram Shetty and accepted in G. J. Fernandez. In other words, this Court did not consider whether, as a result of the deviation, others could a
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lation. This was quite clearly stated by this Court (following Tata Cellular) in Jagdish Mandal v. State of Orissa, 2007 14 SCC 517 in the following words:
“Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made “lawfully” and not to check whether choice or decision is “sound”. When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. Th
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ess adopted or decision made by the authority is mala fide or intended to favour someone;
OR
Whether the process adopted or decision made is so arbitrary and irrational that the court can say: “the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached”;
(ii) Whether public interest is affected. If the answers are in the negative, there should be no interference under Article 226.”
[44] On asking these questions in the present appeals, it is more than apparent that the decision taken by CCL to adhere to the terms and conditions of the NIT and the GTC was certainly not irrational in any manner whatsoever or intended to favour anyone. The decision was lawful and not unsound.
[47] The result of this discussion is that the issue of the acceptance or rejection of a bid or a bidder should be looked at not only from the point of view of the unsuccessful party but also from the point of view of the employer. As held in
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ntial bidders as held in Ramana Dayaram Shetty. However, if the term is held by the employer to be ancillary or subsidiary, even that decision should be respected. The lawfulness of that decision can be questioned on very limited grounds, as mentioned in the various decisions discussed above, but the soundness of the decision cannot be questioned, otherwise this Court would be taking over the function of the tender issuing authority, which it cannot.
[49] Again, looked at from the point of view of the employer if the Courts take over the decisionmaking function of the employer and make a distinction between essential and nonessential terms contrary to the intention of the employer and thereby rewrite the arrangement, it could lead to all sorts of problems including the one that we are grappling with. For example, the GTC that we are concerned with specifically states in Clause 15.2 that “Any Bid not accompanied by an acceptable Bid Security/EMD shall be rejected by the employer as non
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f the principle laid down in Nazir Ahmed that if the employer prescribes a particular format of the bank guarantee to be furnished, then a bidder ought to submit the bank guarantee in that particular format only and not in any other format. However, as mentioned above, there is no inflexibility in this regard and an employer could deviate from the terms of the bid document but only within the parameters mentioned above.
55] On the basis of the available case law, we are of the view that since CCL had not relaxed or deviated from the requirement of furnishing a bank guarantee in the prescribed format, in so far as the present appeals are concerned every bidder was obliged to adhere to the prescribed format of the bank guarantee. Consequently, the failure of JVC to furnish the bank guarantee in the prescribed format was sufficient reason for CCL to reject its bid.
[56] There is nothing to indicate that the process by which the decision was taken by CCL that the bank guarantee furnished
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ation or in the application of terms of the tender conditions. It is further observed that it is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the Constitutional Courts but that by itself is not a reason for interfering with the interpretation given.
10.3. Applying law laid down by the Hon'ble Supreme Court in the aforesaid decision, to the facts of the case on hand, the decision of the respondent Corporation in not treating and / or considering the petitioners as tenderer / bidder and in holding the petitioners ineligible even prior to technical bid stage, cannot be said to be perverse and / or arbitrary and suffering from vice of favoritism. The understanding on the part of the respondent Corporation with respect to applying relevant terms and conditions of the tender document and to treat and / or consider the deposit of bid document fee / bid processing fee and the EMD before relevant date as essen
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cifically mentioned that in case bidder needs any clarifications and / or if training is required to participate online tenders, they can contact (n)Procure Support Team. Moreover, the petitioner could have and ought to have at least made representation to the respondent Corporation prior to submission of the bid that in absence of GSTIN number and as there is ambiguity, it is not possible for the petitioners to deposit the amount of GST. The petitioners neither sought any clarification nor did it make any representation to the respondent Corporation. Therefore, even the case on behalf of the petitioners so pleaded in the petition that the petitioners did not deposit the amount of GST in absence of GST registration / GSTIN is nothing but an afterthought. At this stage, it is required to be noted that as such the petitioners was not required to deposit the amount of GST. The petitioners and others were required to deposit as such Rs. 21,240/towards bid document fee/ bid processing fee w
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a requirement was required to be complied with the entry stage itself. As observed herein above, unless and until, entire amount of bid document fee/ bid processing fee and the EMD is deposited the persons who submitted bid would not get entry at all and only after the aforesaid amount is deposited / paid and receipt is generated, the concerned party can be said to be tenderer / bidder whose bid is required to be considered at technical stage and thereafter on fulfillment of other terms and conditions, its price bid is required to be considered.
12. Now, so far as submission on behalf of the petitioners that such condition cannot be said to be essential condition is concerned, considering the aforesaid decisions of the Hon'ble Supreme Court and when the Corporation applied such condition to all the bidders and as such other bidders also complied with the same, thereafter it will not be open for the petitioners and that too after participating in the tender process that such a con
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as free. Unless and until all the terms and conditions of the tender document, more particularly, “nProcure”and the essential conditions are complied with the petitioners / bidders would not get right automatically to consider him eligible. Downloading of tender document is different thing then thereafter getting the entry after complying with the terms and conditions of the tender document “nProcure” requirement. Therefore, merely because the petitioner and others were permitted to download the tender document free of cost, unless and until all the terms and conditions are satisfied, it does not get any right to consider its bid. Mere downloading of tender document cannot be said to be entry at the initial stage to consider such person who has downloaded as bidder / tenderer.
12.2. Now, so far as the submission on behalf of the petitioners that earlier the tender process was canceled as only one bidder was there and therefore, it was the case of single bid and in the present case als
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counsel for the petitioners are concerned, in the facts and circumstances of the case, the said decisions shall not be applicable to the facts of the case on hand. At this stage, it is required to be noted that in the case of Central Coalfields Limited and Another (supra) and Afcons Infrastructure Limited (supra), the Hon'ble Supreme Court did consider the aforesaid decisions and has distinguished the same on facts. Therefore, considering the decision of the Hon'ble Supreme Court in the case of Central Coalfields Limited and Another (supra) and Afcons Infrastructure Limited (supra), we are of the opinion that impugned decision cannot be said to be either perverse and / or arbitrary and / or mala fide and therefore, the same does not require any interference of this Court in exercise of under Article 226 of the Constitution of India.
14. In view of the above and for the reasons stated above, present petition fails and same deserves to be dismissed and is accordingly dismissed.
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