Bombay High Court
M/S. Aesthetic Land Scaping Thr. ... vs The Navi Mumbai Municipal ... on 27 April, 2021
Bench: G. S. Kulkarni
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Prajakta Vartak
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.1180 OF 2021
M/s.Aesthetic Land Scaping through
Mr.Rahul Tirthraj Yadav ...Petitioner
vs.
The Navi Mumbai Municipal
Corporation & Anr. ...Respondents
WITH
WRIT PETITION (STAMP) NO.9548 OF 2021
M/s.D.B. Infratech ...Petitioner
vs.
The Navi Mumbai Municipal
Corporation & Anr. ...Respondents
.....
Mr.Chirag Kamdar i/b. Mr.Bipin Joshi for Petitioner.
Mr.Sandeep Marne for Respondents.
.....
CORAM :- DIPANKAR DATTA, CJ &
G. S. KULKARNI, J.
DATE :- APRIL 27, 2021.
ORAL JUDGMENT :
1. Questions of fact and law raised in these two writ petitions
are common; hence, we propose to dispose of the same by this
common Judgment.
2. The case run by the petitioner in Writ Petition No.1180 of
2021 is that its bid pursuant to a tender has been considered
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non-responsive by the Navi Mumbai Municipal Corporation on
the ground that it did not submit an undertaking on a stamp
paper of Rs.500/- denomination.
3. It is averred in paragraph 15 of the writ petition that due
to unavailability of stamp paper of Rs.500/- denomination in
the prevailing pandemic, Rs.500/- was paid online through e-
challan in lieu of stamp paper together with an undertaking of
the required nature on affidavit.
4. According to the Municipal Corporation, the course
adopted by the petitioner is contrary to the tender terms and
conditions and the deficiency could not have been cured in the
manner the petitioner sought to cure; therefore, the petitioner's
bid was rightly not considered.
5. We do not find any denial of the averment made in
paragraph 15 of the writ petition by the Municipal Corporation
in its reply affidavit. Applying the doctrine of non-traverse, we
hold that the petitioner was disabled in procuring a stamp
paper of Rs.500/- denomination due to the prevailing pandemic.
We further hold that the petitioner had been left with no other
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option but to comply with the relevant term in the tender notice
in the manner it did.
6. That apart, we cannot proceed unmindful of the law laid
down in the decision of the Supreme Court in Poddar Steel
Corporation Vs. Ganesh Engineering Works & Ors., (1991)
SCC 3 273. The relevant passage from such decision reads as
follows:
"6. *** As a matter of general proposition it cannot be held
that an authority inviting tenders is bound to give effect to
every term mentioned in the notice in meticulous detail, and
is not entitled to waive even a technical irregularity of little or
no significance. The requirements in a tender notice can be
classified into two categories -- those which lay down the
essential conditions of eligibility and the others which are
merely ancillary or subsidiary with the main object to be
achieved by the condition. In the first case the authority
issuing the tender may be required to enforce them rigidly. 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. ***"
7. In our opinion, the approach of the Municipal Corporation
appears to be in the teeth of the aforesaid proposition of law.
Once it is concluded by us that the petitioner was disabled from
procuring stamp paper of Rs.500/- denomination, we cannot
view the relevant term as imposing an essential condition
disregard whereof would entail the bid being declared non-
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responsive; on the contrary, literal compliance of such term
being impossible, the Municipal Corporation could have done
away with rigid enforcement thereof.
8. At this stage, Mr.Marne, learned advocate for the
Municipal Corporation submits that the financial bids of the
other responsive bidders have been opened and it is only the
work order that remains to be issued.
9. Considering the aforesaid facts and circumstances, while
directing the Municipal Corporation to proceed to consider the
financial bid of the petitioner treating it as responsive, we
restrain the Corporation from issuing the work order in favour
of the selected bidder till such consideration, as aforesaid.
10. If at all the petitioner is selected, an undertaking of the
nature required may be obtained from it prior to issuance of
work order in its favour. Also, if there be any other reason for
non-issuance of work order to the petitioner despite it being the
L-1/H-1 bidder, as the case may be, it ought to be informed of
such reason before work order is issued to the selected bidder.
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11. Writ Petition No.1180 of 2011, accordingly, stands
disposed of. There shall be no order for costs.
12. Writ Petition (St) No.9548 of 2021 also stands disposed of,
without costs, in the same terms as above.
(G. S. KULKARNI, J.) (CHIEF JUSTICE)
