Sales Corporation Vs. M/S Bolangir Trading Co.
& Ors  Insc 118 (22 February 2005)
Hegde,B.P. Singh & S. B. Sinha
out of SLP (c) No. 3723 of 2004) WITH
C.A. NO. 1349 OF 2005 (arising out of
SLP (C) No. 4775 of 2004) SANTOSH HEGDE, J.
two appeals arise out of the civil Writ Petition No. 3592 of 2003 filed before
the High Court of Orissa at Cuttack. One
appeal arises out of an order dated 22.8.2003 made by the High Court in the
main writ petition (c) No. 3592/03). The connected appeal arises out of an
order made on 22.12.2003 by the High Court in Review Petition No. 127 of 2003.
Petition (c) No. 3592 of 2003 was filed by the contesting respondent herein
viz. respondent No.3. In the said writ petition the said respondent sought for
an order quashing the tender process held for Bolangir Bhawanipatna territory
whereby the second respondent herein had rejected the tender of the said
respondent herein for providing pre-paid telephone services in the district of Bolangir
Bhawanipatna. It was the contention of the said respondent before the High
Court that though it was fully qualified to be considered and awarded the above
said contract, the same was rejected on erroneous grounds by the second
respondent herein and the contract was awarded in favour of the appellant.
High Court while entertaining the said writ petition allowed the same and held
that the rejection of the offer made by the second respondent herein was
arbitrary and unfair hence, cancelled the contract awarded in favour of the
appellant herein and directed a fresh tender in accordance with law.
aggrieved by the said order setting aside the contract in favour of the
appellant herein preferred Special Leave Petition (c) No. 17828/03 primarily
urging that the certificate of the Chartered Accountant produced by the said
respondent was not a genuine one and the High Court had relied upon the said
forged certificate of the Chartered Accountant and allowed the writ petition.
The said Special Leave Petition came to be withdrawn with a view to approach
the High Court by way of a review petition to bring to its notice that the
certificate of the Chartered Accountant produced by the said respondent on
which the High Court had relied upon, was not a genuine certificate.
the withdrawal of the above said Special Leave Petition the appellant
approached the High Court by way of a review petition alleging that the
Chartered Accountant's certificate purportedly issued by M/s. Romesh Kumar
& Co. was not a genuine one hence, the court was misled to pass the
original order allowing the writ petition. The High Court, however, dismissed
the review petition observing:
the basis of the judgment under review is not only that the writ petitioner had
furnished the report/certificate of the Chartered Accountant the genuineness of
which is under challenge in this review application but also that the entire
tender process stood vitiated on account of absence of clear stipulation in the
advertisement or the notice inviting tenders." Having been unsuccessful in
the review petition the appellant is now before us in these two appeals
challenging both the orders made in the main writ petition as well as in the
review petition by the High Court.
P.N. Misra, senior counsel appearing for the appellant submitted that the
respondent department rightly rejected the tender of the respondent for want of
mandatory information as required in the tender form as well as in the
instructions issued therein.
to the learned counsel, following are the mandatory requirements which the
respondent failed to produce which compelled the respondent department to
reject its offer:
supporting documents wherever applicable in Annexures I & J should be
Turnover of the firm/organisation over the last two years (with supporting
Work experience of the last 2 years with full details (the supporting documents
to be submitted)
Proof of Turn Over (Latest P&L A/c duly certified by a Chartered
checklist, annexures-I & J along with all desired documents and EMD should
counsel for the appellant also submitted that the department in its counter has
clearly stated that the tender of the respondent was rejected for lack of
information in the tender form which was the mandatory requirement for
accepting the tender amongst which latest profit and loss account duly
certified by a Chartered Accountant evidencing the annual turnover of Rs. 25 lakhs
was necessary. The department in the said counter had also stated that the
respondent along with the tender document had filed only the purported
certificate of the Chartered Accountant and its sales tax turnover whereas the
profit and loss account was never produced as certified along with the tender
form and was filed for the first time before the High Court in the writ
petition, therefore, when the tender of the said respondent was considered
there was no material to find out what exactly was the profit and loss account
for the year 2001-02 evidencing sale turnover as required in Appendix- C,
Annexure-J and Checklist Clause 6 (c) of the tender documents.
the contention of the learned counsel for the appellant as also of the learned
counsel for the department that because of the non- supply of this material
information the offer made by the respondent had to be rejected. The learned
counsel then pointed out from the judgment of the High Court that the High
Court came to the conclusion in the writ petition that none of the above
documents was required to be mandatorily furnished, and specially the audited
profit and loss account for the relevant year. The rules and conditions subject
to which the bids were invited did not anywhere stipulate that a tender would
be rejected if audited profit and loss account in support of the eligible
turnover of Rs. 25 lakhs was not furnished by the tenderer.
argument of the learned counsel for the respondent was in tune with the finding
of the High Court inasmuch as that the absence of the documents which was made
the basis for rejection of the tender were really not called for in the
advertisement and as a matter of fact the turnover of the said respondent for
the relevant year was more than the minimum stipulated in the tender form
hence, the same was produced before the High Court to establish its claim for
acceptance of tender.
have heard the argument of the learned counsel for the parties and perused the
record. In our opinion, the High Court was not justified in coming to the
conclusion that production of the documents mentioned herein above along with
the tender form was not mandatory and the High Court was also not justified in
coming to the conclusion that neither the rules and conditions governing the
tender nor the advertisement calling for tender made it mandatory for an
intending tenderer to produce those documents and specially proof of turnover
for the relevant year 2001-02. We have already noticed from the various
conditions in the tender form and annexures annexed thereto that production of
supporting documents wherever applicable in Annexure I & J was one of the
requirements of the tender and Annexure J specifically required at Sl. No. 7
the proof of turnover of the firm over the last two relevant years with
supporting documents. The same annexure also required the tenderer to produce
proof of work experience for the last two years with full details and
supporting documents and the checklist had specifically mentioned that the
production of proof of turnover with latest profit and loss account dully
certified by a Chartered Accountant was a mandatory requirement.
this background we are unable to accept the finding of the High Court that
there was no mandatory requirement of the production of the above documents. As
a matter of fact the High Court erred in coming to the conclusion in para 6 of
its judgment in the writ petition that "the advertisement in Annexure-1 to
the writ petition only states that for Bolangir-Bhawanipatna, a tenderer must
have a turnover of Rs. 25 lakhs, but it does not anywhere state that audited
profit and loss account has to be submitted by a tenderer showing a turnover of
Rs. 25 lakhs". This finding of fact as noticed by us herein above is
contrary to records and is an error apparent on face of the record.
counsel for the respondent submitted that he along with the writ petition
produced sufficient material to establish his turnover, which the High Court
correctly accepted, but the learned counsel for the appellant, in our opinion
rightly, contended that these turnovers really did not reflect the turnover of
the relevant year. It is also relevant to note the fact that the allegation,
that certification by a Chartered Accountant is not genuine, has not been
rebutted by the concerned respondent.
this factual background, we think the High Court was not justified in allowing
the writ petition of respondent No.1 Bolangir Trading Company in regard to the
grant of contract pertaining to the district of Bolangir Bhawanipatna.
we have come to the conclusion that the High Court has misread the material on
record and has committed factual error based on which the relief is granted, we
do not think it necessary to go into the various judgments relied upon by the
the reasons stated above these appeals succeed. The impugned orders of the
court below are set aside and the writ petition (c) No. 3592 of 2003 is
view of our above order, there is no need to make any separate order in the
appeal arising out of the review order of the High Court.