1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.7284 OF 2009 1) M/s Studio Arc Through it’s Proprietor, Nisar Kadarkhan Pathan and another. - PETITIONERS VERSUS 1) The State of Maharashtra and another. - RESPONDENTS ***** Mr.SV Mundhe,Advocate for Petitioners; Mr.NB Khandare, Government Pleader, for Respondents. ----- CORAM : NARESH H. PATIL & K.U.CHANDIWAL, JJ. DATE : 11th November, 2009. PER COURT : . Heard. 2) The petitioner participated in the tender process initiated by Respondent No.2 – The Tuljapur Development Authority for the various works to be undertaken by the authority. Tender document is placed on record. Clauses 3.0; 3.1.4, sub-clauses 3.1.4.1 and 3.1.4.2, read as 2 under : “3.0 Preparation of proposal Preparation and submission shall be in three envelopes as below - (i) Envelope No.1 – Documents in proof of eligible (Annexure- I & Volume-II) (ii) Envelope No.2 – Technical Proposal (Annexure-II) (iii)Envelope No.3 – Financial Proposal (Volume III) Each Annexure has different formats with forwarding letter. Documents may be attached in support of information against respective format. The bidder shall fill the required information in the required formats prepared as per the sample formats of Annexure – I and Annexure – II. The each and every page of Annexure-I, Annexure-II, Volume-II and Volume – III needs to be signed while submitting Envelope No.1, 2 and 3.” “3.1.4. Bid Security : 3.1.4.1 The bid shall be accompanied by bid security as per Data Sheet in Volume-II in the form of Demand Draft/Bankers cheque in favour of Executive Engineer, Public Works Division, Osmanabad payable at Osmanabad. 3.1.4.2 Any bid not accompanied by the Bid security 3 will be rejected.” 3) The petitioner submitted the tender proposal. The envelope No.1 of the petitioner/tenderer was opened and it was found that the petitioner did not submit the bid security as prescribed by the authority and the authorities having found the petitioner disqualified and ineligible to be continued in the second stage of tender process, the petitioner’s tender was rejected. 4) The learned Counsel for the petitioner submitted that the petitioner, by mistake placed the Demand Draft of the bid security in Envelope No.2 (Technical Proposal) and if it is opened the Demand Draft of the bid security would be found in the second envelope. Therefore, submitting the amount of Demand Draft towards the bid security in the second envelope, being not material and being an error relating to peripheral or collateral matter requires to be neglected and the valid bid of the petitioner/tendered ought not to have been rejected by the authorities. Learned Counsel for the petitioner in support of this submission placed reliance on a reported judgment of the Apex court in the matter of Tata Cellular Vs. Union of India, ( AIR 1996 SC 11). 4 5) Learned Government Pleader, on instructions, submitted that the clauses set out in the tender document are very clear in this regard and the authorities are not bestowed upon with any discretionary power to ignore the lapses committed on the part of the bidders. The learned Government Pleader drew our attention to the relevant clause of the tender document, more particularly clauses 3.0 and 3.1.4, based on which, it was submitted that in absence of tender being not accompanied with bid security, such tender would be rejected. According to the petitioner/tenderer, Envelope No.1 relates to Documents in proof of eligibility (Annexure-I & Volume-II). We have perused the Data-sheet relating to the said Annexure (Volume-II) (page 95 of the petition) Clause 5 of the said Data Sheet refers to Bid Security which is to be furnished in the form of Demand Draft in Envelope No.1. 6) These are contractual matters and, therefore, the clauses of the tender document have bearing on the issue raised by the parties. We have perused the Judgment (cited supra). We do not find that the the petitioner’s eligibility was discarded on the ground of any clerical/typographical mistake or any error relating to non-essential matter, i.e. 5 peripheral or collateral matter. The classification of the clauses in the tender document relating to Envelope No.1 goes to the root of the matter as it determines eligibility of the tenderer. 7) We do not find any error in the view adopted by the respondents/authorities in rejecting the tender of the petitioner. In exercise of extra ordinary writ jurisdiction under Article 226 of the Constitution, the petition cannot be entertained, it stands dismissed. Ad-interim relief granted by this Court on 9th November, 2009 stands vacated. (K.U.CHANDIWAL) (NARESH H. PATIL) JUDGE JUDGE bdv/wp7284.09