Spl. C.A. No.4172 of 2005

15th March, 2005

Petitioner Counsel: HRIDAY BUCH
Respondent Counsel: SIRAJ GORI, A.G.P. (for No.1), K. M. PATEL

Cases Cited:
Kanhaiya Lal Agrawal Vs. Union of India, (2002)6 SCC 315 [Para 4,6]

JUDGMENT

B. J. SHETHNA, J.:- Heard Shri. Hriday Buch for the petitioner and Shri. Siraj Gori, learned A.G.P., appearing on the advance copy of this petition being served upon him for the respondent No.1-State of Gujarat and Shri. K. M. Patel, learned counsel for respondents Nos.2 and 3.

2. The petitioner-P. H. Transport has filed this petition through its partner Shri. Nilesh Hargovanbhai Vithlani of Junagadh, under Art.226 of the Constitution of India and prayed that the impugned order dated 09-03-2005 (Annexure: A), passed by the Manager (LTC) respondent No. 3 of Gujarat State Civil Supplies Corporation Ltd.-respondent No.2, be quashed and set aside and the respondents be directed to permit the petitioner or its representatives to participate in the negotiation scheduled to be held on 15-03-2005 at 10.30 a.m. i.e. today.

3. It may be stated that yesterday at 11.00 a.m. Shri. Buch, learned Counsel for the petitioner mentioned before us to circulate this matter at 2.15 p.m. yesterday i.e. on 14-3-2005 on the ground that the negotiations were going to take place on 15-03-2005 at 10.30 p.m. His request was not acceded as an attempt was made to stall the order at last minute, but he was permitted to circulate this matter today i.e. on 15-3-2005. Accordingly, this matter was listed at Sr. No.5 in today's Ist Urgent Admission Board and by giving top priority to Shri. Buch, his matter was taken up as first case. When the matter was taken up, learned Counsel Shri. K. M. Patel appeared for respondents Nos.2 and 3 though no notice was issued by us on this petition. When asked, Shri. Patel stated at the Bar that the respondents Nos.2 and 3 were informed by Fax Message dated 14-03-2005 that against their decision dated 09-03-2005 they (the petitioner) have approached High Court and the hearing of the same is fixed by this Court on 15-03-2005 at 11.00 a.m., therefore, negotiation be postponed or deferred at least till afternoon. Shri. Patel further stated at the Bar that on being informed they themselves have deferred the negotiation of Junagadh District and kept it last after the negotiation with the tenderers of about 4 to 5 districts of the State of Gujarat.

4. Shri. Buch, learned Counsel for the petitioner argued the matter vehemently for a considerable time. He submitted that purely on a technical ground his tender was rejected only because in the past they made the representation to the respondents Nos.2 and 3 for inviting tenders from them and because of that only the respondents Nos.2 and 3 have rejected their tender purely on a technical ground, namely, that PAN of the petitioner firm was not given. Relying on the Supreme Court Judgment In the case of Kanhaiya Lal Agrawal Vs. Union of India, reported in (2002)6 SCC 315, Shri. Buch submitted that the condition of supplying PAN was not essential. It was only collateral and, therefore, on such hyper technical ground his tender should not have been rejected by the respondents Nos.2 and 3. However, learned Counsel Shri. Patel for the respondents Nos.2 and 3 submitted that case of the petitioner was not a solitary case where the tender form was rejected on such a technical ground of not supplying the details about PAN number. He submitted that they have rejected the tender of another party from Junagadh District itself, where the party failed to give the details about PAN and also on the ground of having less than 5 trucks. Shri. Buch for the petitioner concedes to this. But, according to him in addition to non-supplying details about PAN there was also a breach of essential condition of 5 trucks not having with that party, therefore, tender form of that party was rightly rejected by the respondents Nos.2 and 3. Whereas, in the instant case there was only one ground i.e. details of PAN was not given. He, therefore, submitted that the order passed by the respondents Nos.2 and 3 be quashed and set aside and the petitioner be permitted to participate in the negotiation today itself.

5. Before dealing with the rival submissions made by the learned Counsel for the parties, we would like to narrate few relevant facts of this case which are necessary for correct adjudication of the matter, which are as under:

i) Advertisement was published in the local newspaper on 08-02-2005 inviting tenders for transportation of food grains in Junagadh and Porbandar Districts:

ii) Time limit for Issuance of the tender forms and its acceptance was from 19-02-2005 to 28-02-2005;

iii) On 22-02-2005 the petitioner deposited Rs.1,000/- and submitted its tender form on 01-03-2005;

iv) 28-02-2005 was the last date for tender Notice;

v) 02-03-2005 was the last date for submission of tender form, whereas the petitioner submitted its tender form on 01-03-2005, just one day before the last date of submission of tender form, and on 02-03-2005 the tenders were opened.

vi) Between 02-03-2005 and 07-03-2005 the respondents processed the tender forms of all the parties. They found that there was breach of condition 4.1 of the tender form by the petitioner by not supplying the details about the PAN number. Therefore, after two days i.e. on 09-03-2005 they informed the petitioner about its form being rejected on such ground (Annexure: A).

vii) On 07-03-2005, for the first time, the petitioner firm applied for its PAN number and informed the respondent No.2 about it only on 09-03-2005, the day on which his tender was rejected.

viii) In tender form the petitioner tried to mislead the respondents Nos.2 and 3 by giving PAN number of Shri. Nileshkumar Hargovinddas Vithalani, one of the partners of the petitioner P. H. Transport Co., instead of giving PAN number of P. H. Transport Co.

ix) Though all the tender forms were opened on 02-03-2005 the petitioner firm waited till 07-03-2005 and applied for PAN number, the day on which the scrutiny of tender forms was over.

6. In the above background, now we would like to consider the judgment of the Hon'ble Supreme Court in the case of Kanhaiya Lal Agrawal (supra) cited by Shri. Buch for the petitioner. We have carefully gone through the same and, in our considered opinion, the said judgment of the Hon'ble Supreme Court has no application on the peculiar facts of this case. It is well settled law that when an essential condition of tender is not complied with then it is open to the person Inviting tender to reject the same. Whether the condition is essential or collateral could be ascertained by reference to the consequence of non-compliance thereto. If non-fulfillment of the requirement resulted in rejection of the tender, then it should be an essential part of the tender, otherwise it is only a collateral term.

7. In the present case, admittedly there was a breach of condition mentioned in para : 4.1 of the tender form, under which if the PAN is not there then the concerned person has to produce certified copies of application form for getting such PAN. Admittedly, in this case the petitioner firm was not having PAN and at the time of filling up his tender form they have not produced the certified copy of the application form. In fact, as stated earlier, they have applied for PAN for the first time only on 07-03-2005, the day on which the scrutiny of tender form was over and as soon as they came to know that their form was going to be rejected on that ground then they applied only on 07-03-2005 and then informed about the same to the respondents Nos.2 and 3 after two days i.e. on 02-03-2005, the day on which the respondents have already rejected their tender form on this very ground.

8. It is well settled law that only those persons coming with clean hands, would get the reliefs from the Court. Admittedly, in the Instant case, at the cost of repetition, we may state that the petitioner tried to mislead the respondents Nos.2 and 3 by giving PAN of its one of the partners and not its own while filling up the tender form. Therefore, the petitioner would not be entitled for any relief, much less discretionary relief from this Court under Article 226 of the Constitution.

In view of the above discussion, this petition fails and is hereby summarily rejected.

Petition dismissed.