Lakhvinder Singh v. East Delhi Municipal Corporation and Anr.

1. With the consent of the parties, the writ petition is set-down for final hearing and disposal at the admission stage itself.

2. This petition has been filed by the petitioner under Article 226 of the Constitution of India, seeking a direction to quash and set-aside the decision of respondent No.1 by which his tender stands rejected.

3. Brief facts which are required to be noticed for disposal of this writ petition are that on 26.08.2019 respondent No.1 invited bids from eligible bidders for allotment of parking sites for surface parking at various locations. Since some of the essential conditions of the tender 2019:DHC:6488-DB were subsequently changed, the petitioner approached this Court by filing W.P(C) No.10736/2019 in which this Court vide order dated 01.10.2019 stayed the tender process. Consequently, the petitioner was allowed to participate in the tender process and in the month of October 2019 the petitioner submitted its bids for two parking sites, being site being No.23 and site No.61. On 18.11.2019, the petitioner was declared highest bidder for site No.23; however, his bid for site No.61 was rejected and respondent No.2 was declared highest bidder for that site. The reason given for rejecting the petitioner’s financial bid for site No.61 was that the petitioner had not supplied a signed copy of the parking site, which forms part of the tender conditions.

4. While not disputing that a signed copy of the parking site was not filed, as an alternative plea, learned counsel for the petitioner submits that once an affidavit had been submitted in terms of tender clauses 2(i)(h) and 2(ii)(i), there was substantive compliance with the terms of the tender in question, more specifically in the petitioner accepting the layout of the parking site. He submits that the parking site map is already provided in the tender document and the bidder is only supposed to sign and submit the same, along with an undertaking in the form of an affidavit. The affidavit is the crucial document since it contains the deposition of the bidder that he has visited the parking site physically and is satisfied with the parking site.

5. Ms. Pushkarna, learned counsel for the respondent/ EDMC submits that there is no infirmity in the decision-making process of respondent No.1. Reliance is placed on the tender conditions, more particularly Clause No.2(ii)(i) and the clause containing ‘Word of Caution’ which is also part of the tender document. Clauses 2(ii)(h) and 2(ii)(i) and the clause containing ‘Word of Caution’ read as under: “Terms & Conditions for allotment of parking sites in EDMC area 1.… …..

2. Tendering process and document to be submitted with tender form: The bidder should submit the following documents with the Technical Bid to establish his Technical Eligibility. Technical Bid will be disqualified if any one of the given below documents not enclosed: Technical Bid: (i)No Dues Certificate (for the current dues up to date and previous dues, if any) issued by RP Cell, EDMC (if applicable). (ii An undertaking by way of affidavit (original) on a nonjudicial stamp paper of Rs.10/- (Rupees Ten Only) duly notarized to the effect that: … … h) That I have visited the parking site physically and satisfied with the parking site available in actual as well as shown in the map. I have also enquired about all local conditions/circumstances as well other hidden conditions/circumstances about the geographical location of the respective parking site and I/we am/are offering my/our bid & monthly license fee (MLF) for the respective parking site keeping the all facts. I will not claim any remission in respect of said condition/circumstance. i) That I have also enclosed a signed copy of respective parking site map along with my tender application form. …. …. # No document/payment will be called from bidders at later stage and decision on the technical bid will be held on the submitted/enclosed documents with the tender application form.”

6. Relying on the afore-stated clause containing ‘Word of Caution’, Ms. Pushkarna submits that respondent No.1 was well within its right to reject the bid of the petitioner since the petitioner had not submitted a signed copy of the parking site map.

7. We have heard learned counsels for the parties and have considered their rival submissions.

8. The bid of the petitioner has been rejected on the ground that the petitioner had not submitted a signed copy of the parking site map. However, a careful reading of condition No.2 of the tender document would show that every bidder is required to give an affidavit, in the form of an undertaking on non-judicial stamp paper confirming that the bidder had visited the parking site physically and was satisfied with it. Once such affidavit was furnished, in our view, there was substantial compliance by the petitioner not only of tender condition No.2(ii)(h) but also of condition No.2(ii)(i).

9. Learned counsel for the petitioner submits that the reserve price of the bid was Rs.1,35,000/- per month and respondent No.2, who has bid a licence fee of Rs.1,37,000/- per month, has been declared highest bidder. Learned counsel for the petitioner further submits that though the petitioner’s financial bid has not yet been opened, the petitioner will be the highest bidder with a bid for licence fee of Rs.2,62,000/- per month. Thus, he submits that if the financial bid had been opened, the bid of the petitioner would have been the highest for the site in question.

10. Learned counsel for the petitioner further submits that, in any case, he will supply a signed copy of the parking site map to respondent No.1 during the course of the day.

11. While we are clear about the scope of interference by the court in tender matters, which interference is required to be restricted to reviewing the decision-making process and not the decision itself, we are aware that typically the tender conditions comprise conditions that are essential and those that are ancillary, that is to say that certain conditions are central and critical to the very subject matter to which a tender relates; and there are other conditions which are intended to subserve the essential aspects of a tender.

12. In the context of the present case, we are of the view that the purpose of condition No. 2(ii)(h), which requires that a bidder must depose to the fact that he has physically visited the parking site for which he has bid and is fully aware of the contours of the site, its geographical location as also other local conditions and circumstances which may affect the financial returns that the bidder may expect from the parking site for which he is to offer a monthly license fee, is well and fully taken care of by the requirement of filing of an affidavit to the said effect. This admittedly the petitioner has done. On the other hand, the requirement of enclosing a signed copy of the parking site map alongwith the tender application form is in our view only an ancillary condition, in furtherance of what the bidder is required to depose under condition No. 2(ii)(h) of the tender conditions.

13. In these circumstances, considering the peculiar situation in the present case, whereby the affidavit has been duly furnished but the signed copy of the parking site map was missing; and further considering that the petitioner is willing to offer a substantially higher bid in the sum of Rs.2,62,000/- per month towards monthly license fee (against the so-far highest bid of Rs.1,37,000/- per month made by respondent No. 2), we are of the view that it would be prudent that the petitioner be permitted to furnish a copy of the parking site map, as he has offered; and subject to that, the financial bid of the petitioner be opened by respondent NO. 1 and a final decision be taken thereon.

14. It is directed accordingly.