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Tej Ram Vs. State of J. and K. and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtJammu and Kashmir High Court
Decided On
Case NumberWrit Petn. No. 447 of 1984
Judge
Reported inAIR1985J& K63
ActsConstitution of Jammu and Kashmir - Article 103
AppellantTej Ram
RespondentState of J. and K. and ors.
Appellant Advocate R.S. Thakur, Adv.
Respondent AdvocateS.D. Sharma ad; A.K. Sawhney, Advs.
DispositionPetition dismissed
Excerpt:
- .....of foodgrains and other controlled commodities from and to the places mentioned in the tender notice, annexure a for the period ending with march, 1985. clause (2) of the tender notice provided that tenders must be accompanied by a separate call deposit receipt of rs. 200/-on scheduled bank pledged to the dy. commissioner, as earnest money without which no lender would be considered valid isher dass, respondent 5 was declared to be the lowest bidder but he had furnished call deposit receipt of rs. 100/- only instead of rs. 200/-. tej ram, petitioner, who was the next lowest bidder, has filed the present petition for quashing the order of respondent 2 director, food and supplies, jammu, to have been passed on the recommendation of the dy. commissioner, kathua, according.....
Judgment:
ORDER

K.K. Gupta, J.

1. Dy. Commissioner, Kathua, invited tenders for the transportation of foodgrains and other controlled commodities from and to the places mentioned in the tender notice, annexure A for the period ending with March, 1985. Clause (2) of the tender notice provided that tenders must be accompanied by a separate call deposit receipt of Rs. 200/-on Scheduled Bank pledged to the Dy. Commissioner, as earnest money without which no lender would be considered valid Isher Dass, respondent 5 was declared to be the lowest bidder but he had furnished call deposit receipt of Rs. 100/- only instead of Rs. 200/-. Tej Ram, petitioner, who was the next lowest bidder, has filed the present petition for quashing the order of respondent 2 Director, Food and Supplies, Jammu, to have been passed on the recommendation of the Dy. Commissioner, Kathua, according sanction for allotment of the work to respondent 5 for the carriage of foodgrains from Kathua Food Stores to various sale depots in Kathua town and other places, as violative of the mandatory conditions of the tender notice and also prayed for a writ of mandamus directing the respondents to allot the contract to him at the rate mentioned by him in his tender.

2. Respondents 1 to 4 have filed objections submitting therein that at the time of opening of the tenders in presence of the tenderers, Isher Dass respondent 5, gave a plausible explanation to the effect that he was misled because copy of the tender-notice which he received had printed defect as figures '200' was being read as '100'. On the perusal of the tender notice issued to respondent 2 the said defect was obvious and because of that respondent 5 also furnished another call deposit receipt for Rs. 100/-. The rate of Rs. 0.80 p. per quintal quoted and offered by respondent 5 was the lowest as against other tenders received.

3. Isher Dass respondent 5 has also filed objections averring therein that writ petition is not maintainable as no fundamental or legal right of the petitioner is involved. He being the lowest tenderer, was entitled for thecontract work. There was only a technical omission in furnishing the call deposit as figures were not legible. Moreover, condition to deposit Rs. 200, - was not substantial one so as to disqualify him for the allotment of work.

4. I have heard learned counsel for the parties in regard to admission of the writ petition. Clause (2) of the tender notice issued by the Dy. Commissioner, reads as under :--

' 2. The tenders must be accompanied by a separate call deposit receipt of Rs. 200/-cash on scheduled bank pledged to the Dy. Commissioner as earnest money without which no tender will be considered valid. The earnest money will be refunded to the unsuccessful tenderers after one week from the date of acceptance of a tender and each case of (sic) successful, it will be accounted for, towards-cash security refundable after the expiry of contract.'

It appears that Isher Dass, respondent 5 furnished call deposit receipt of Rs. 100/-instead of Rs. 200/-. Copy of the tender notice received by this respondent has been placed on record and figures in Clause (2) in this tender notice appear Rs. 100/- . It is also evident that the Dy. Commissioner, opened the tenders in presence of all the tenderers and this omission on the part of respondent 5 was brought to his notice then and there. After satisfying himself, Dy. Commissioner, Kathua, allowed respondent 5 to furnish another call deposit receipt of Rs. 100/-.

5. In order to debar a tenderer from participating in the bid or to reject his tender on the ground that he has violated any condition, it is to be noted and considered whether the condition violated is essential to the performance of the contract or it is ancillary one to the main object of the contract. In the present case call deposit as required under Clause (2) of the tender notice cannot be said to be essential condition to the performance of the contract as it relates to a matter which could have been fulfilled even later. Moreover, there is Clause (13) in the tender notice which provides that the Government reserves the right to itself to accept or reject any tender without assigning any reason therefor. Thisclause authorises the government to acceptor reject any tender. It also appears that respondent 5 undertook to transport the foodgrams at the rate offered (sic) to do such work at the rate of Rs. 1.25 p. per quintal

6. Considering all the facts and circumstances, there is no justification in allowing the petitioner to perform his part of the contract at Rs. 1.25 p. per quintal when respondent 5 is prepared to do so at Rs. 0.80 per quintal. No legal or fundamental right of the petitioner has been violated in the present case which requires interference by this Court. The writ petition, is therefore, dismissed in limine.


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