(1) WP 9100.2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.9100 OF 2011 Angira Buildcon Pvt. Ltd., A-2, Wasanti Apartment, Shivramnagar, Jalgaon through its Power of Attorney Shri Shrikant Gopaldas Khatod, Age 43 years, Occu.: Business, R/o 77, Jay Nagar, Jalgaon PETITIONER VERSUS 1. The State of Maharashtra through its Secretary, Urban Development Department, Mantralaya, Mumbai 32 2. Jalgaon Municipal Corporation, Jalgaon through its Commissioner RESPONDENTS ..... Mr. P.M. Shah, Sr. Advocate h/f. Mr. V.D. Sapkal, Advocate for the Petitioner. Mr. V.D. Rakh, A.G.P. for the Respondent-State. Mr. N.B. Suryawanshi, Advocate for the respondent no.2 ..... CORAM : B.R. GAVAI AND M.T. JOSHI, JJ. DATED : 07TH DECEMBER, 2011 ORAL JUDGMENT (PER -B.R. GAVAI, J.): 1. Rule. Rule made returnable forthwith. By consent, the Petition is heard finally. 2. By way of the present Petition, the petitioner is challenging the non-consideration of (2) WP 9100.2011 the tender of the petitioner, on the ground that it does not comply with the requirements issued under the tender notice. In response to the notice inviting tenders, the petitioner alongwith other three persons had submitted their tenders for parking plus commercial complex, to be constructed on behalf of the Corporation on "Built, Operate Lease and Transfer" (herinafter referred to as "B.O.L.T. Scheme"). 3. Clause 8 of the tender notice, which is relevant for adjudication of the present matter, reads thus:- "8. Certificate from the lead banker about the financial standings and viability of the developer undertaking the project." . It can thus be seen that under the said clause, the bidder was required to produce a certificate about the financial standings and viability of the developer undertaking the project. Clause 7.8 is also relevant for the purpose of this Petition, which reads thus:- "7.8 Jalgaon City Municipal Corporation reserves the right to seek (3) WP 9100.2011 additional information from the bidders if found necessary during the course of evaluation of the bid. Non submission/incomplete submission or delayed submission of such additional information or clarification sought by Jalgaon City Municipal Corporation may be a ground for rejecting the bid." . It can thus be seen that the tender notice itself provides that in the event certain compliance is not made by the bidder, opportunity would be given to the bidder to comply with the requirements within a particular period. It is not in dispute that vide communication dated 15.10.2011, the respondent- Corporation had addressed a communication to the petitioner, asking him to comply with clause 8 of the tender notice alongwith certain other compliances. Insofar as the other compliances are concerned, there is no dispute and as such we need not go into that aspect of the matter. In accordance with the communication of the respondent-Corporation, the petitioner alongwith his covering letter submitted a letter addressed by the bankers of the petitioner to the petitioner, showing the net worth of the petitioner. However, it appears that the petitioner was informed that the said certificate was not in (4) WP 9100.2011 compliance with the requirements and as such the petitioner submitted another certificate on 20.10.2011, which shows the net worth of the petitioner to be ` 25 Crores. 4. It is not in dispute that the certificate dated 20.10.2011 complies with the requirements of the respondent-Corporation. 5. Shri Suryawanshi, learned counsel appearing on behalf of the respondent-Corporation vehemently submitted that though the petitioner was granted three days period to comply with the requirement, he has not complied inasmuch as the certificate which was submitted on 18.10.2011 did not comply with the requirement. He submits that the certificate dated 20.10.2011 is submitted after the period which was given to the petitioner and as such, the same cannot taken into consideration. He submits that the rejection is on valid ground and as such no interference is required. 6. The Apex Court in the matter of G.J. Fernandez Vs. State of Karnataka reported in AIR 1990 S.C. 958 has considered what are the essential and (5) WP 9100.2011 non-essential conditions to be complied alongwith the tender documents. Perusal of clause 7.8 alongwith the conduct of the respondent-Corporation in addressing the letter to the petitioner dated 15.10.2011 itself would reveal that the financial standings and viability certificate, which was submitted alongwith the tender document was not an essential document to be submitted at the stage of submitting and an opportunity could be given to the bidder to submit the same at a subsequent point of time. Indisputably, the petitioner has submitted a letter addressed to him by the leading bankers which shows that the bankers had sanctioned the cash-credit of ` 17 Crores and bank guarantee of ` 8 Crores to the petitioner, thereby showing his financial standings and viability to the tune of ` 25 Crores. Perusal of this document alongwith the certificate issued by the leading bankers i.e. Axis Bank to the respondent-Corporation would show that it has been certified in the said Certificate that the company enjoys the following credit limit with Axis Bank : i) Cash Credit limit : ` 17 Crores; ii) Bank Guarantee Limit : ` 8 Crores. (6) WP 9100.2011 It also certifies that net worth of the petitioner is ` 30.33 Crores. The project in question is costing ` 13 Crores. Perusal of the document, which is indisputably submitted by the petitioner to the respondent-Corporation would reveal that the petitioner was indisputably having net worth of ` 25 Crores. 7. The Apex Court in the case of M/s. Poddar Steel Corporation Vs. M/s. Ganesh Engineering Works and ors. reported in AIR 1991 S.C. 1579 has considered the issue and in somewhat similar situation. The Apex Court has observed thus: "8. In the present case the certified cheque of the Union Bank of India drawn on its own branch must be treated as sufficient for the purpose of achieving the object of the condition and the Tender Committee took the abundant caution by a further verification from the bank. In this situation it is not correct to hold that the Diesel Locomotive Works had no authority to waive the technical literal compliance of clause 6, specially when it was in its interest not to reject the said bid which was the highest. We, therefore, set aside the impugned judgment and dismiss the writ petition of the respondent no.1 filed before the High Court. The appeal is accordingly allowed with costs throughout." (7) WP 9100.2011 8. From the document which is submitted within the stipulated period, it can clearly be seen that the said document is sufficient to show that the petitioner's worth is atleast ` 25 Crores. Indisputably, the subsequent document, which according to the respondent-Corporation satisfies the requirement, shows the petitioner's worth to be ` 30.33 Crores. We therefore find that the rejection of the petitioner's tender was on hyper-technical grounds. In any case, if there is larger competition, then the respondent-Corporation is likely to be benefited. The same would also be in the public interest. 9. In that view of the matter, we are inclined to allow the Petition in terms of prayer clause (B) and (C). Rule is made absolute accordingly. Sd/- Sd/- [M. T. JOSHI, J.] [B. R. GAVAI, J.] arp/