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CASE NO.: Appeal (civil)  1348 of 2005

PETITIONER: Laxmi Sales Corporation                          

RESPONDENT: M/s Bolangir Trading Co. & Ors.           

DATE OF JUDGMENT: 22/02/2005

BENCH: N. Santosh Hegde,B.P. Singh & S. B. Sinha

JUDGMENT: J U D G M E N T (arising 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.         Delay condoned.          Leave granted.          These 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.  

       Writ 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 \026 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 \026 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.          The 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.          Being 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  The said Special Leave Petition came to be withdrawn  with a view to approach the High Court by way of a review petition  to bring to its notice that the certificate of  the Chartered  Accountant produced by the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.  

       After 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

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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: "\005Thus, 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.  

       Mr. 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.   According to the learned counsel, following are the mandatory  requirements which the respondent failed to produce which  compelled the respondent department to reject its offer: a)      All supporting documents wherever applicable in Annexures  I & J should be furnished;  b)      Turnover of the firm/organisation over the last two years  (with supporting documents);  c)      Work experience of the last 2 years with full details (the  supporting documents to be submitted) d)      Proof of Turn Over (Latest P&L A/c duly certified by a  Chartered Accountant) e)      The checklist, annexures-I & J along with all desired  documents and EMD should be furnished.

Learned 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.  It is 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.  

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The 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.    We 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.  

In 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.  

Learned 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.   In 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 \026 Bhawanipatna.  

Since 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 High Court.  

For 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 dismissed.

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       In 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.