SAILESH KUMAR RUSIA Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) The factual, matrix involved in this writ petition is that in pursuance of the advertisement published in the newspapers, tenders were invited for the sale of picture halls, which were constructed by U.P. Chalchitra Nigam (hereinafter referred to as the Nigam), which it could not run and closed the same. In the advertisement, it was provided that the tender would be filled in the Form which was to be obtained from the Nigam and was to be submitted with a draft of Rs.25,000.00 as security by 11 a.m. on 12-5-1993.

(2.) It has been submitted that the petitioner after obtaining and filling up the Form went up to the office of the Nigam with a draft of Rs.25,000.00, which; was prepared on 11/05/1993 by the Central Bank of India, Jalaun payable to Nigam along with an affidavit, which was sworn before 11 a.m. on 12-5-1993. He gave his tender which was taken by the officers of the Nigam who received it without raising any objection. The tenders were opened on the same day at 4.30 p.m. in presence of the bidders, which included the petitioner Sri Hari Krishna, who was impleaded as a party to this writ petition and two other persons, namely, Sri A.K. Dhusiya and Suneel Kumar Misra. The petitioner raised a grievance that his tender was not either opened (nor considered) and when he protested, then he was told that his tender was received few minutes after 11 a. m. and, therefore, the matter would be considered by a Committee. No tender was accepted at that time and all the bids were merely noted. The bidders were informed that the acceptance of the bid would be intimated after the Committee has considered the tenders. The admitted position is that Sri Hari Krishna had offered Rs.25,00,000.00, Sri A. K. Dhusiya offered Rs.21,10,000.00, while S. K. Misra offered Rs.20,01,000.00 and while petitioner offered Rs.26,00,000.00 for the purchase of the said Cinema House.

(3.) The petitioner contended that he reached the office of the Nigam well before 11 a.m. and submitted tender before 11 a.m. but the official, who was to receive the tender was busy in making some entries and doing some other work and even after the petitioner's tender was handed over he checked the particulars and made certain entries because of which he recorded that the tender had been received at 11.15 a.m. For the aforesaid delay petitioner was not responsible and his tender could not be refused or rejected for consideration of late receipt. As receipt of the tender was accepted by the authorities of the Nigam, the condition in the advertisement that it should have been presented before 11 a.m. stood waived and the refusal of the authorities to consider the tender by the petitioner was arbitrary. It was further indicated that the condition that the tender ought to have been filed before 11 a.m. on 12-5-1993 was not an essence of the contract as there existed no stipulation in the advertisement that no tender would be accepted after 11 a.m.