Mohammad Rafiq, J. - (1.) THIS appeal seeks to challenge the order of the learned Single Bench of this Court dt. 3.5.2013 by which, writ petition filed by the appellant was dismissed, Appellant in the writ petition had prayed the action of the respondents in not opening the technical bid and financial bid for construction of ROB (excluding Railway portion) at LC No. 36 -C on Kuchaman City -Makrana Section of Mangalana Road SH -2B in Km.8, be declared as illegal, arbitrary and unconstitutional and their action in declaring respondent No. 3 as successful bidder without opening the bid of petitioner company, be quashed and set -aside with direction to open the technical and financial bid of the petitioner company and then award contract to the petitioner if it is declared as lowest bidder. Respondent -Road State Road Development & Construction Corporation Limited invited bid for construction of ROB (excluding Railway portion) at LC No. 36 -C on Kuchaman City -Makrana Section of Mangalana Road SH -2B in Km.8. The approximate value of the contract was Rs. 5.15 crore and the work was to be completed within nine months. All bidders were required to deposit a bid security of 2% i.e. Rs. 10.30 lacs for the purpose of participation in the bid. Appellant also submitted his lender along with requisite amount including 2% amount of Rs. 10.30 lacs in the form of Fixed Deposit Receipt (FDR) in favour of the Project Director. The technical bid was to be opened on 15.3.2013. Technical bid of the appellant was rejected by the respondents on the ground that the FDR issued in favour of the Project Director has not been rightly issued as per their requirement. The FDR was required to be issued as per the Tender Condition No. 3 payable in the name of 'Project Director, RSRDC Ltd., Unit Merta City, at Merta', whereas it has been issued payable in the name of 'Project Director, RSRDC Ltd., Unit Merta City Jaipur'. Condition No. 5 of the Tender Conditions and Instruction No. 16.1 chapter titled 'Bid Security' in Part -C of Section 1 of the Instructions to Bidder. Condition No. 16.1 provides that the bidder shall furnish, as part of his Bid, a Bid security for the amount shown in IFB for this particular work, in favour of Project Director, RSRDC, Unit Merta city, in one of the following forms: (a) Bank Guarantee from any Nationalised Indian bank, in the format given in Volume 3. (b) Fixed Deposit Receipt, issued by any Nationalised Indian Bank. (c) Demand Draft.
(2.) APPELLANT chose to submit FDR of Union Bank of India, Punjabi Bagh, New Delhi in favour of Project Director, RSRDC Ltd., Unit Merta City, Jaipur, whereas it should be made payable in favour of Project Director, RSRDC Ltd., Unit Merta City, at Merta. Since condition No. 5 of the information for bid document was not followed in letter and spirit, respondents as per the prescription made in clause 16.3 of Part -C Section 1 instructions to bidder supra, rejected the bid submitted by the appellant as non -responsive. Learned Single Judge upheld action of the respondents as lawful. Shri R.N. Mathur, learned senior counsel for the appellant contended that in the tender submitted by the appellant, appellant had given a lowest bid and had offered to complete the work at a lesser cost by Rs. 2 lacs than one quoted by respondent No. 3, successful bidder, who was awarded the work. Learned senior counsel for the appellant submits that this is straight loss to the State exchequer and there is no legitimate reason for rejection of the bid of the appellant. Appellant is a reputed company. It had submitted duly completed tender in the required format. Word "Jaipur" was indicated in the FDR because no branch of Union Bank was situated at Merta city and therefore the home of the branch closed to the unit was indicated Immediately on coming to know of this objection, appellant wrote to the Manager, Union Bank of India, Punjab. Bagh, New Delhi, who sent a clarification to the Project Director, RSRDC Ltd. Unit Merta city, Merta that due to non -existence of branch in Merta, FDR in nearest branch linked at Jaipur as per bank norms, has been issued. On demand of the beneficiary, a demand draft can be issued in favour of the beneficiary payable at the nearest link branch. On the same day, another clarification was issued by the bank to the same Project Director saying that on demand of the beneficiary, Demand Draft will be issued by them in favour of Project Director, RSRDC Ltd, Unit Merta city, Merta. This was sufficient compliance of the requirement of the tender condition and it was not essential condition but was merely an ancillary condition to the main object of completion of the contract. Respondents with malafide intention rejected the tender of the appellant treating it to be non -responsive. Malafide is further evident from their conduct because when appellant filed writ petition, respondents entered a caveat and yet they issued the work order in favour of respondent No. 3 the successful bidder. Learned senior counsel for the appellant has argued that the ancillary condition even if satisfied later in point of time, ought not to result in rejection of the tender document and the bid. In support of his argument, learned senior counsel for the appellant cited the judgments of Supreme Court Tata Cellular vs. Union of India, : (1994) 6 SCC 651, M/s. Poddar Steel Corporation vs. M/s. Ganesh Engineering Works & Ors., : AIR 1991 SC 1579 and judgment of Gauhati High Court in Bibhu Bhushan Choudhary vs. Union of India (UOI) & Ors., dt. 7.1.2000 passed in Misc. Case No. 1340 of 1999 and W.P. (C) No. 5952 of 1999.
(3.) SHRI S.N. Kumawat, learned Additional Advocate General for RSRDC and Shri R.P. Garg, learned counsel for respondent No. 3 have opposed the appeal and submitted that when specific condition was provided in condition Instruction No. 16.1 of Section 16 Bid Security Part - -C of Section 1 of the bid document requiring the bidder to get the security by way of Demand Draft or Fixed Deposit Receipt payable in the name of Project Director, RSRDC, Unit Merta city, at Merta, no deviation therefrom can be permitted since the appellant has not correctly submitted the Demand Draft indicating the name of beneficiary, his bid was rejected in conformity with condition Instruction Nos. 16.1 & 16.2 of Section 16 Bid Security Part -C of Section 1 of the bid document and the bid was required to be rejected as non -responsive, which is clearly indicated in the aforementioned clause. Learned counsel submitted that plea of the appellant cannot be bonafide because when he submitted Demand Draft of Rs. 1,000/ - with the tender form in terms of Condition No. 2 (iii) of the tender document, it was very much indicated therein showing that the Demand Draft shall be drawn in favour of Project Director, RSRDC, Unit Merta city, at Merta. Besides condition No. 5 contained in the same tender document, also required so. Appellant could not have lost sight of condition No. 5. Respondents therefore did not make any mistake in rejecting the bid of the appellant. Learned counsel submitted that the learned Single Judge was perfectly justified in holding the bid of the appellant has rightly been treated as non -responsive by the respondent -RSRDC. Moreover, the work order has been issued to respondent No. 3 and he has started the work even during pendency of the writ petition.;