IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 2584 OF 2009 M/s.Jay Polytrap Industries ..... ..... ...Petitioner V/s Director of Industries (C.S.P.O.) & Ors. ..... .....Respondents. WITH WRIT PETITION NO. 2585 OF 2009. Jiger Traders.... .... ..... .... Petitioner. V/s Director of Industries (C.S.P.O.) & Ors. ..... .....Respondents. Mr.Shivajirao A. Masal, Adv. for the petitioners. Ms.Geeta Shastri AGP for the respondent No.1. CORAM: J.N.PATEL ACTING C.J. AND B.R.GAVAI, J. 18th January, 2010. PC: Since the factual and legal position is identical in both the matters both these petitions are heard together and are being disposed of by this common judgment. 2. The petitioners impugn the action of respondent Nos. 1 & 2 herein thereby holding that the petitioners were technically disqualified for participating in tender process of supply of plastic tarpaulin made from high density polyethylene woven fabric with ISI mark (hereinafter referred to as the “plastic tarpaulin”). The petitioners have prayed for a declaration, holding them to be qualified 1 in the tender process and for opening the envelopes containing the commercial offers submitted by the petitioners. 3. The facts giving rise to filing of present petitions are as under : Respondent No.1 which is a department of State of Maharashtra had by a notice invited tenders of rate contract from eligible bidders for supply of Plastic Tarpaulin made from High Density Polyethylene Woven Fabric with ISI mark. According to the said tender notice the last date for submission of tenders was 19.11.09 and that the said tender was to be valid till 18.3.2010. The bidders thereto were to submit two envelopes, the first envelope containing documents regarding technical qualification of the bidders and the second envelope containing commercial offer of the bidders. When the first envelopes of both the petitioners were opened on 24.11.09 both the petitioners were held to be non-complying with the requirements in the tender notice and they were thus disqualified to compete in the said bid. Being aggrieved thereby the present petitions have been filed. 4. Learned Counsel Shri Shivajirao Masal, appearing on behalf of the petitioners submits that though the petitioners have duly complied with all the necessary requirements and furnished the requisite documents, which would establish that they were qualified to bid in the tender process, they were illegally held to be disqualified and prevented from participating in the tender process. 5. Smt.Shastri, learned AGP appearing on behalf of respondents 1 and 2 on the contrary submitted that the petitioners failed to submit the mandatory documents which were required to be submitted regarding their qualification and as such were rightly held to be disqualified. She therefore submits that the petitions are without any 2 merit and are liable to be dismissed. 6. We have heard the learned counsel for the petitioners and also perused the record. In so far as the petitioner in Writ Petition No. 2584/09 M/s.Jay Polytrap Industries is concerned the sole ground on which he has been found to be disqualified is that the petitioner had not enclosed the literature of product range of “plastic tarpaulin” manufactured by them, for which the tender was called. In so far as the petitioner in Writ Petition No.2585/09 M/s.Jiger Traders is concerned he has been found to be disqualified on following grounds: (i) that he had not enclosed certificate for exemption in lieu of earnest money deposit in respect of “plastic tarpaulin” ; (ii) he had not submitted details about past performance for the last three years on separate sheet as required in condition No.8; (iii) He had not given letter of acceptance of al terms and conditions with stamp on the separate letter head as required by condition No.9. 7. It can thus be seen that the respondents are alleging non compliance of condition Nos. 1, 8 and 9 of tender notice in so far as petitioner-Jiger Traders are concerned and non compliance of condition No.11 in so far as petitioner-Jay Polytrap Industries is concerned. The said conditions read thus: “1. Demand Draft of Rs.5000/- in respect of Earnest Money Deposit drawn in favour of Development Commissioner (Industries) & C.P.O. Mumbai or document showing exemption from payment of E.M.D. such as Registration with C.S.P.O., N.S.I.C., DGS & D and EM Part II under MSMED Act for such items. 3 8. The Tenderer should furnish details about the supplies made to government during the last three years in the following format if R/C holder in Technical Envelope on separate sheet. 9. Letter for acceptance of all terms and conditions of the tender document on letter head with stamp of co/bidder. 11. The product literature should be given in the technical Envelope.” 8. From a perusal of the affidavit in reply filed on behalf of the respondents themselves, it can be seen that the petitioner-Jay Polytrap Industries has given all the details regarding the products that are being offered by him. The respondents have themselves annexed along with their affidavit the compliance statement which shows how the product offered by the petitioners complies with the specifications required by the respondents. Not only this yet another document which would show a detailed specification of “plastic tarpaulin” has also been submitted by the petitioner which has been annexed along with reply filed by the respondents. The said document clearly speaks regarding the product offered by the said petitioners being 100% water proof, rot proof, fungus proof, UV treated and are tear resistant. It also shows that the life of the said tarpaulin is three times more, when compared to canvass tarpaulin. It is further stated that the tarpaulins are UV stabilized and they would not be damaged during high temperature. It has been further stated that the said tarpaulin are tested at every stage of manufacturing in the full fledged laboratory of the petitioners, to test as per the ISI requirement and each tarpaulins will be ISI marked. In view of this position, we are of the considered view that the petitioners-Jay Polytrap Industries had sufficiently complied with the condition No.11, in as much as the entire material 4 which gives details about the product offered by the petitioner was submitted by them. We find that the approach adopted by the respondents in contending that the printed document showing photographs etc. was not produced is hyper technical one. 9. In so far as the petitioner Jiger Traders is concerned it can be seen from the perusal of condition No.1 that a party is required to submit a demand draft of Rs.5000/- in respect of EMD or document showing exemption from payment of EMD such as Registration with C.S.P.O., N.S.I.C., DGS & D and EMO in the first envelope. We find that the petitioner has submitted exemption certificate dated 10.7.08 issued by the Commissioner of Development (Industries) of the Government of Maharashtra which grants it exemption for various items including tarpaulin. We find that merely because the word used is not “plastic tarpaulin” but “tarpaulin” would not be a permissible ground for not considering the said exemption certificate. We find that in view of this certificate issued by the Commissioner of Development (Industries), Government of Maharashtra who is respondent No.2 the petitioner was not required to give a demand draft towards EMD. We find that rejection on this ground is also a hyper technical approach. In so far as condition No.8 is concerned it could be seen that the respondents themselves have prescribed format in which details of supply made to the Government during last three years are to be given, and that the said information is given by the petitioner in the required format. Perusal of page 50 annexed to the reply filed by the respondents would reveal that the petitioner has clearly stated that they shall accept all terms and conditions of tender document including security deposit. We therefore find that the petitioner had made sufficient compliance of the condition Nos. 8 and 9 also. We therefore find that approach of the 5 respondents in rejecting the technical bid of the petitioner on the aforesaid grounds is totally hyper technical approach and the same is not sustainable in law. 10. The Apex Court in the case of M/s.Poddar Steel Corporation V/s M/s.Ganesh Engineering Works & Ors., AIR 1991 SC 1579 has held thus: “As a matter of general proposition it cannot be held that an authority inviting tenders is bound to give effect to every term mentioned in the notice in meticulous detail, and is not entitled to waive even a technical irregularity of little or no significance. The requirements in a tender notice can be classified into two categories – those which lay down the essential conditions of eligibility and the others which are merely ancillary or subsidiary with the main object to be achieved by the condition. In the first case the authority issuing the tender may be required to enforce them rigidly. In the other cases it must be open to the authority to deviate from and not to insist upon the strict literal compliance of the condition in appropriate cases.” It would thus be seen that the Apex Court has held that where the conditions laid down in the tender notice are essential conditions of eligibility the authority issuing the tenders would be required to enforce them rigidly. However in so far as ancillary or subsidiary requirements are concerned the strict literal compliance of the conditions should not be insisted upon. We find that in the present case, as discussed above, there has been substantial compliance of the conditions. In any case it can be seen that the documents which were required were pertaining to ancillary or subsidiary issues. A strict adherence in letter and spirit, in our view, would not have been 6 warranted. In fact the documents submitted by the petitioners clearly show that they have substantially complied with the requirements in the tender document to show that they are qualified to compete. 11. We are therefore of the considered view that act of the respondents in holding the petitioners to be disqualified is not sustainable in law. Hence writ petitions are allowed. Rule is made absolute in terms of prayer clause (a)(i) with no order as to costs. (ACTING C.J.) (B.R. GAVAI, J.) 7