SPORTS CORNER Vs. PUNJAB STATE

JUDGEMENT

(1.) SHRIMATI Sheel Kathuria, carrying on business under the style "messrs Sports coiner" in Sector 22-D, Chandigarh, has come up to this Court under Article 226 of the Constitution to annul and quash the orders of respondents Nos. 1 and 2 (Punjab State and the Controller of Stores, Punjab), dated May 21, 1966, refusing to consider the tender submitted by the petitioner for the supply of sports goods on annual rate contract basis on the ground that the tender was submitted five minutes late. The facts giving rise to the filing of the petition are neither lengthy nor complicated. Invitation to tender (Annexure 'a') was issued by the Punjab government under the signature of the Assistant Controller of Stores, Punjab, on april 28, 1966, inviting offers to be made by 1 P. M. on May 21, 1966, for supply of sports goods of which description was given in the invitation to tender. One of the conditions laid down in the said public notice was that samples of each article offered, duly labelled indicating the rate, sealed and signed, must accompany the offer in duplicate failing which the rates were liable to be ignored. Condition No. 6 in the circular was to the effect that the tenders would be regarded as constituting offers open to acceptance in whole or in part at the discretion of the Controller of stores, Punjab, till August 15, 1966. It is significant to notice that the said invitation to tender admittedly did not specify the name, particulars, designation or address of the authority with whom the tenders were to be filed or to whom the tenders were to be submitted by 1 P. M. on May 21, 1966. It is the common case of both sides that the petitioner presented the requisite samples of each of the relevant articles duly labelled indicating the rate, sealed and signed within time before 1 P. M. on May 21, 1966, and they were actually received by the Government within time. Before delivering the samples, the petitioner's representative had gone to the Assistant Controller of Stores to lodge the tender. According to the petitioner this happened at 12-55 P. M. According to the written statement of the respondents, the tender was offered to the Assistant controller at 1 P. M. This difference in time is not material, because it is not disputed that in either case, the tender was offered to the Assistant Controller of stores within time. It does appear that the petitioner's representative must have met the Assistant Controller a few minutes before 1 P. M. as he was able to deliver the samples in a different building within time after leaving office of the Assistant controller. It is also admitted by both sides that the Assistant Controller advised the representative of the petitioner to deliver the tender to the Office superintendent, and that it was in pursuance of the said direction that the representative of the petitioner went to bungalow No. 561, where the samples were accepted from him, but he was told that he would have to present the tenders in kothi No 562. It was on arrival in that house that the Superintendent told the petitioner's representative that the tender had become five minutes late, and the said Superintendent made a note to that effect on the tender itself in spite of the petitioner having told the Superintendent all the above-mentioned facts. The office of the Assistant Controller is in bungalow No. 549. The office of the superintendent was originally situated in building bearing No. 600, but had according to the respondents been shifted in April, 1966, to building No. 562. The representation of the petitioner, dated May 21, 1966 (Annexure 'b') for condoning the delay of five minutes in presenting the tenders not having been granted, the petitioner submitted a further application, dated June 24, 1966 (Annexure 'c'), wherein it was represented that the petitioner's tender was regular one and was in fact not a belated one in the circumstances described above. Prayer was again made in that application to consider and take into account the petitioner's tender as the samples with the rates labelled on them, had already been submitted within time. Not having been granted the relief claimed by her, the petitioner came to this Court on July 5, 1966, by way of this writ petition. The Motion Bench while admitting the petition on July 20, 1966, directed stay of acceptance of the tenders. Mr. M. M. Punchhi, the learned counsel for the respondents states that the tenders including that of the petitioner, have not been opened by the Government since then on account of the stay order.

(2.) THE petition has been contested on behalf of the respondents and an affidavit of paramjit Singh, Controller of Stores, Punjab, Chandigarh, has been filed as return of respondents Nos. 1 to 4 in reply to the rule issued by this Court. Material facts admitted by the respondents in the said reply, have already been referred to by me while giving a narrative of the case. The respondents, however, added that though the Assistant Controller did advise the representative of the petitioner to deliver the tender to the Office Superintendent, this was only according to the extant practice as some of the tenders used to deliver the tenders in person to the office Superintendent, who also received tenders submitted by post, though strictly speaking the tenders submitted by hand were required to be deposited in the box meant for the purpose. This averment is based on Rule 8 (v) of the rules framed by the Punjab Government under Article 283 of the Constitution in place of the original Appendix to the Punjab Financial Rules, Volume II, vide Punjab government, Finance Department, notification No. 5530-4 FDII-61, dated the 23rd august, 1961, published in the Punjab Government gazette, dated the 8th september, 1961. The said sub-rule provides that "the tenders shall be collected in a locked box to be opened on the day fixed for the purpose". I need not deal with this plea of the respondent at any length, because the tender of the petitioner was not sought to be excluded from consideration on the ground that it had not been collected in the locked box. Moreover, it is admitted by the respondents that the alternative method of handing over the tenders to the Office Superintendent was not only in vogue, but had been suggested to the petitioner's representative by the Assistant Controller himself.

(3.) CONSIDERING the fact that the intending tenders were not told in the published invitation to tender to file their offers with any particular officer and the fact that the invitation to tender (Annexure "a") was signed by the Assistant Controller of stores and the fact that samples were received duly labeled with the tendered prices within time and five minutes' delay was occasioned in the submission of the tender on account of no fault of the petitioner, I would have been inclined to hold, if it was open to me to do so, that the refusal of the Government to consider the petitioner's tender, was neither fair nor just, but such a finding can be invited only in appropriate proceedings. Mr. Pipat learned counsel for the petitioner has relied on a single Bench judgment of the Travancore-Cochin High Court in Krishnankutty v. State of Travancore-Cochin, AIR 1951 Trav-Co. 197, wherein it was held in this connection as follows :--