B RAJKUMAR PATRA Vs. UNION OF INDIA

JUDGEMENT

(1.) Opposite party No. 2, Indian Rare Earths Limited, is a 'Government Company' with its registered office at Bombay in which all the shares are held by the Government of India. The Orissa Sands Complex (opposite party No. 3) (hereinafter referred to as 'OSCOM') is a project under the said Company operating at Chatrapur within the territorial jurisdiction of this Court, which is engaged in manufacture of radio-active sand and Thorium in terms of the provisions of the Atomic Energy Act, 1962. By notice (Annexure 1) tenders were invited from competent contractors for execution of certain electrical work for OSCOM against specification No. OSCOM/E-25, the estimated cost of the work being Rs. 2,50,900. In paragraph 2 of the notice of invitation, it was stipulated:--

(2.) At the hearing Mr. Mohanty for the petitioner confined his submissions mainly to two aspects:--

(3.) There is no dispute that in the tender notice there was a categorical stipulation that after 2.30 P. M. on the appointed date, no tender would be received under any circumstances whatsoever. Admittedly, Laguna did not submit the tender within the appointed time. In fact, its tender was not opened at 3 P. M. along with the other tenders. Mr. Jayanta Das appearing for opposite party No. 3 contended that conceding that opposite party No. 2 was an instrumentality of the State, acceptance of the tender in the instant case of Laguna could not be challenged on the ground that there had been any infraction of the clause in the tender notice. In the counter-affidavit, it has been indicated at length and counsel for opposite party No. 3 has reiterated before us the same to the effect that the representative of Laguna came from Calcutta to submit the tender along with the requisite draft for purposes of security. The train by which the representative travelled ran unusually late on the day and, therefore, within the time stipulated in the tender notice, the representative could not reach the destination and present the tender. An enquiry about the correctness of this allegation was made and on being satisfied that the delay in the circumstances was beyond the control of the representative, the tender was accepted. This reasoning does not at all appeal to us. Whatever may have been the reason, the clear stipulation was that no tender after the appointed time would be received. Since opposite party No. 3 had decided to invite tenders and the procedure usually followed in public offices had been adopted, there was no justification for the OSCOM to deviate from the normal method and take upon itself the responsibility of accepting a tender which did not satisfy the clear requirement of the notice. Delayed arrival of the train could not constitute a justification in the face of the terms of the tender notice to accept the tender furnished beyond time. The next question for consideration is whether the Indian Rare Earths Limited is an instrumentality of the State. This question has been examined in three recent decisions of the Supreme Court, the first one being the case of Ramana Dayaram Shetty v. International Airport Authority of India, AIR 1979 SC 1628. That was a case where the International Airport Authority of India set up under the International Airport Authority Act, 43 of 1971, had invited tenders from registered second class hoteliers having at least five years' experience of putting up a second class restaurant and two snack bars at the International Airport at Bombay for a period of three years. The latest point of time up to which the tenders could be submitted was stipulated in the notice and tenders were to be opened half an hour after the optimum point of time set for receiving tenders. There were six tenders received in response to the tender notice. One of the conditions was five years' experience as second class hotelier. The International Airport Authority entered into correspondence with respondent No. 4 and on certain facts being disclosed accepted the tender. This acceptance was challenged by filing a writ application which was dismissed in the High Court on merit. The Supreme Court did not agree with the High Court but ultimately did not interfere in view of the delay and other equitable considerations. The Court found that the test of eligibility laid down in the tender notice was an objective test and not a subjective one and as a fact the fourth respondent did not have the requisite qualification. The Court pointed out (at p. 1642):-