Uttarakhand High Court
Shiva Corporation India Ltd vs State Of Uttarakhand And Another on 22 January, 2024
Author: Vivek Bharti Sharma
Bench: Vivek Bharti Sharma
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (M/B) No.365 of 2023
Shiva Corporation India Ltd. ....Petitioner
Versus
State of Uttarakhand and Another .... Respondents
Present:
Mr. N.S. Nadkarni, Senior counsel assisted by Mr. Amit Mendiratta and Ms Megha
Karnwal, Advocate for the petitioner.
Mr. S.N. Babulkar, Advocate General (through V.C.) with Mr. C.S. Rawat, Chief
Standing Counsel and P.C. Bisht, Additional Chief Standing Counsel for the
State/respondent.
Dated: 22.01.2024
Hon'ble Vivek Bharti Sharma, J. (Oral)
By means of present writ petition, petitioner
has sought the following reliefs:-
(i) Issue a writ, order or direction in the nature of
certiorari quashing the impugned order dated
13.12.2023 passed by respondent no.4
(Annexure No.4).
(ii) Issue a writ, order or direction commanding
the respondent no.2 to allow the petition to
participate in the bidding/auction process in
pursuance of the tender notice dated
22.11.2023.
2. Learned senior counsel appearing for the
petitioner would submit that there was a condition in the
tender notice at para no.6(5) that the Earnest Money
Deposit (EMD) amount should be deposited as security
amount along with the tender by way of bank guarantee/
FDR issued by the nationalized bank. He would further
submit that the petitioner, however, submitted the FDR
issued by ICICI Bank and, on this count, his technical
bid was rejected by respondent no.2.
3. He would further submit that the Hon'ble
Supreme Court in re Poddar Steel Corporation Vs.
Ganesh Engineering Works and Others, reported in
(1991) 3 SCC 273 has laid down a law in para 6 that
there may be some conditions/requirements in a tender
notice, which can be classified in two categories, one
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; that, in the
first case the Supreme Court opined that the authority
issuing the tender may be the required to enforce the
conditions rigidly but in the second category of the
condition 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.
4. Learned senior counsel would further submit
that condition to submit FDR of a nationalized bank is of
the second category and thus it was not essential and
could have been waived of or ignored by the respondent
authority. He would submit that the rejection of the
technical bid on this ground was unwarranted.
5. Per contra, learned State Counsel would
submit that the petitioner should have follow submitted
the FDR of a nationalized bank as per the condition of
the tender notice but the petitioner submitted FDR of a
private bank. He would further submit that the condition
of FDR/Bank Guarantee of a nationalized bank was
introduced in order to secure money. He would further
submit it is not for the petitioner to decide and dictate
the terms and conditions of a tender.
6. He would further submit that the contract has
already been awarded and the petitioner has not
impleaded the successful bidder as party respondent and
therefore the writ petition is not maintainable for non-
joinder of necessary party.
7. Learned counsel for the State would place
reliance upon the case of M/s Om Gurusai Construction
Company vs. M/s V.N. Reddy & Ors., reported in
(2023) SCC OnLine SC 1051 and would refer para 35 of
this judgment and would submit that the attempt by
unsuccessful tenderers, like petitioner in present case,
with imaginary grievances, wounded pride and business
rivalry, to make mountains out of molehills of some
technical/procedural violation has to be resisted.
8. Having heard the rival submissions of learned
counsel for the parties, this Court finds that on
15.12.2023 a Division Bench of this Court had adjourned
the case with direction that award of contract, if any,
shall abide by outcome of this writ petition. Thereafter, the
matter was listed before the Vacation Bench on
16.01.2024 but on the said date the fact that contract
has been awarded to a third party was not brought on
record by the State.
9. Learned counsel for the petitioner would
submit that in the LOI the respondent should have
mentioned that final award of contract shall abide by the
final outcome of the present writ petition.
10. In view of the above, the State is directed to file
a detailed counter affidavit within two weeks.
11. List on 12.02.2024.
12. Till the next date of listing, no further action
shall be taken by the respondents in furtherance of the
award of contract.
(Vivek Bharti Sharma, J.)
Vacation Judge
22.01.2024
Rajni
