- (1.) A. K. Yog, J. The petitioner ap proached this Court under Article 226 of the Constitution of India, being allegedly aggrieved by the action of the respondents in floating tenders of supply to the Or dinance Equipment Factory, Kalpi Road, Kanpur. On 17th May, 2000 Division Bench, of this Court passed following order:- "admit. The respondents are at liberty to open the tender documents received but will not finalize the same until further orders of this Court. The matter shall be listed on 23-5-2000 for orders, showing the name of Sri Subodh Kumar as learned counsel for the respondents. Dated 17-5-2000 Hon'ble S. K. Sen, A, C. J. Hon'ble Paloke Basu, J. "
(2.) PURSUANT to the aforesaid order, counter-affidavit along with present stay vacation application No. 46745 of 2000 has been filed. Rejoinder affidavit has also been filed after serving the copy on Sri Subodh Kumar learned counsel repre senting respondents No. 1 to 4 on 6-6-2000. Sri. P. S. Baghel, learned counsel for the petitioners for purposes of deciding the interim stay matter argued as fol lows:- (1) The ground mentioned in the order dated 13-5-2000 (Annexure-3 to the counter affidavit) disclosed to the petitioner with respect to the petitioner's disqualification under Section 4-D of O. F. C. on ground that the petitioner had failed to secure a single contract after registra tion of his firm for more than 3 years. In this context, it will be suffice to mention that the petitioner was required vide said letter dated 13- 5-2000 to inform the concerned authority along with the copy of the contract within the requisite three years period. There is no averment in the amendment application and its sup porting affidavit that the petitioner did reply to the said letter to satisfy the authority that the ground mentioned for disqualifying him from participating in the tender process in question was incorrect.
(3.) THE petitioner, then referred to the latter dated 10-11-1999 (Annexure R. A.-4) and endeavored to demonstrate that the petitioner was given tender beyond three years period to be counted w. e. f. date of registration i. e. after 2-8-1999. At the moment we are concerned with the interim application onprima facie basis without affecting the rights of the parties to be adjudicated finally at the time of final hearing. The leaned counsel for the contesting respondents pointed out that the alleged tender form (Annexure-R. A-1) does not relate to the respondents' unit. (1) Firstly, in order to plead estoppel or waiver it has to be specifically pleaded that the party, against whom the waiver is pleaded must have waived his right knowingly conscientiously. There is no foundation for such a plea. Docu ments annexed with the rejoinder affidavit (par ticularly Annexure No. 1 and Annexure No. 4 to the writ petition) do not relate to the Ordinance Factory, Kalpi Road, Kanpur but to another unit which is an independent/sister concern unit. And, hence documents relating to unit other than the respondents unit therefore, these documents of other unit have no relevance to decide the issue of waiver in the present case. (2) During course of argument, it was mentioned on behalf of the petitioner that he is ready to take contract on 25 per cent less rates as compared to the lowest bid to be accepted by the respondents. According to the petitioner (who was present in the Court), it will make a difference of about Rs. 40 lacs. It is not at all relevant for deciding the issues at present. The offer made in the Court during course of argument may be for various reasons. Such an offer may be actually to frustrate the tender and have sadistic pleasure to defeat the defence. Offer may not be viable for more than one reason including to let down his adversary.;