ORDER S.H.A. Raza, J.
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/- as security by 11a.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/-, which was prepared on 11th May, 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 recieved it without raising any obejction. 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 garievance 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 arid 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/-, Sri A. K. Dhusiya offered Rs. 21,10,000/-, while S. K. Misra offered Rs. 20,01,000/- and while petitioner offered Rs. 26,00,000/- 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 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.
4. Mr. R.N. Trivedi the senior counsel appearing on behalf of the petitioner submitted that as the tender was opened at 4.30 p.m. there existed no reason for the authorities concerned not to have considered the tender submitted by the petitioner as his tender was for the highest bid i.e. 26 lakhs, non-acceptance of the tender of the petitioner has resulted into a loss to. the tune of Rs. 1,00,000/- to the public exchequer as the Nigam is an instrumentality of the State. It was also submitted that the draft accompanying the tender bid had been deposited by the Nigam in its own account. The Nigam after having accepted the consideration had waived the condition pertaining to a particular time deemed to have accepted the tender bid and now they cannot refuse to accept the tender bid.
5. Mr. R.N. Trivedi further cited the decision of the Hon'ble Supreme Court in the case of G. J. Fernandez v. State of Karnataka (1990 (2) SCC 488) : (AIR 1990 SC 958) wherein it was indicated:--
"Thirdly, the conditions and stipulations in a tender notice like this have two types of consequences. The first is that the party issuing the tender has the right to punctiliously and rigidly enforce them. Thus, if a party does not strictly comply with the requirements of para III, V or VI of the NIT, it is open to the KPC to decline to consider the party for the contract and if a party comes to Court saying that the KPC should be stopped from doing so, the Court will decline relief. The second consequence, indicated by this Court in earlier decisions, is not that the KPC cannot deviate from these guidelines at all in any situation but that any deviation, if made, should not result in arbitrariness or discrimination. It comes in for application where the non-conformity with, or relaxation from, the prescribed standards results in some substantial prejudice or injustice to any of the parties involved or to public interest in general. For example in this very case, the KPC made some changes in the time frame originally prescribed. These changes affected all intending applicants alike and were not objectionable. In the same way, changes or relaxations in other directions would be unobjectionable unless the benefit of those changes or relaxations were extended to some but denied to others. The fact that a document was belatedly entertained from one of the applicants will cause substantial prejudice to another party who wanted, likewise, an extension of time for filing a similar certificate or document but was declined the benefit. It may perhaps be said to cause prejudice also to a party which can show that it had refrained from applying for the tender documents only because it thought it would not be able, to produce the document by the time stipulated but would have applied had it known that the rule was likely to be relaxed. But neither of these situations is present here. Shri Vaidyanathan says that in this case one of the applicants was excluded at the preliminary stage. But it is not known on what grounds that application was rejected nor hs that party come to Court with any such grievance. The question, then, is whether the course adopted by the KPC has caused any real prejudice to the appellant and other parties who had already supplied all the documents in time and sought no extension at all? It is true that the relaxation of the time schedule in the case of the one party does affect even such a person in the sense that he would otherwise have bad one competitor less. But we are inclined to agree with the respondent's contention that while the rule in Ramana case will be readily applied by Courts to a case where a person complains that a departure from the qualifications has kept him out of the race, injustice is less apparent where the attempt of the applicant before Court is only to gain immunity from competition. Assuming for purposes of argument that there has been a slight deviation from the terms of the NIT, it has not deprived the appellant of its right to be considered for the contract, on the other hand, its tender has received due and full consideration. If, save for the delay in filing one of the relevant documents, MCC is also found to be qualified to tender for the contract, no injustice can be said to have been done to the appellant by the consideration of its tender side by side with that of the MCC and in the KPC going in for a choice of the better on the merits. The appellant had no odubt also urged that the MCC had no Experience in this line of work and that the appellant was much better qualified for the contract. The comparative merits of the appellant vis-a-vis MCC are, however, a matter for the KPC (counselled by the TCE) to decide and not for the Courts. We were, therefore, rightly not called upon to go into this question."
6. On the basis of the averments made in the writ petition on 25-5-1993, an Hon'ble single Judge of this Court directed the opposite parties to consider the bid tendered by the petitioner for the purchase of the picture house at Jalaun, while finalising the same. On 11th June, 1993 Sri Hari Krishna, who has offered a bid of 25 lacs for the purchase of the said cinema applied for the vacation of the order on 25th May, 1993 and also preferred an application for impleading him as opposite party to the writ petition.
7. On 4th August, 1993 the application for impleadment was allowed. The Court further directed the Nigam to file a supplementary counter-affidavit specifically stating as to whether the time 11.15 a.m. was for receipt of the application or the time when the endorsement was made after scrutinising the application of the petitioner as alleged by the petitioner. The affidavit was to be filed within a week. In the said application for impleadment Sri Hari Krishna stated that he had already deposited Rs. 25,000/- as earnest money before submitting the tender and when his bid was accepted vide his tender he was further required to deposit Rs. 14,75,000/- by means of the letter dated 25-5-1993. He deposited the aforesaid amount by the Bank draft. His offer of Rs. 25/- lacs was accepted in the meetings of the Board of Directors held on 21st May, 1993. A perusal of the minutes of the said meeting which has been annexed as Anneuxre A3 reveals that the Committee which was constituted to accept the tenders has recommended that the bid of Sri Hari Krishna for Rs. 25/ - lakhs for the purchase of the cinema house at Jalaun be accepted and the Board of Directors granted sanction for the sale and transfer of the said cinema house in favour of Sri Hari Krishna. It was indicated in the proceedings of the meeting that besides the three cinema houses which are situate at Renukot, Sonbhhadra, Hamirpur and Jalaun, tenders were invited for the sale of twenty two other cinema houses. Some of the tenders were received belatedly. The Committee did not open those tenders which were received beyond the time fixed. The Board of Directors rejected some of the tenders which were below the reserved price. In view of the aforesaid situation the tenders for 22 cinema houses besides the aforesaid three cinema houses were cancelled which fact would be published in the newspapers and fresh tenders would be called for the sale of the aforesaid two cinema houses. From the aforesaid proceedings it transpires that the Board of Directors in its meeting dated 21-5-1993 accepted and approved the tender of Sri Hari Krsihna for purpose of the cinema house at Jalaun. It was further averred in the affidavit supporting the impleadment application that the stipulation contained in the advertisement to submit the tenders till 11 a.m. on 12-5-1993 was clear and hence no tender could be submitted after 11 a.m. on the said date. As the petitioner's tender was submitted beyond the stipulated time hence he was not eligible to make a bid.
8. The attention of this Court was drawn towards a letter dated June 4, 1993 which was written by Sri Sudhakar Singh on behalf of the Nigam addressed to Sri Hari Krishna, wherein it was indicated that in pursuance of the orders dated 25-5-1993 passed by this Court the letter dated 25-5-1993 issued by the Nigam accepting his (Hari Krishna's) bid shall remain stayed. The petitioner has also annexed the proceedings of the 65th meeting of the Board of Directors of Nigarn dated 14-6-1993 along with the counter-affidavit which was filed to counter the application for impleadment which indicates that in pursuance of the orders passed by this Court the tender of the petitioner which was received beyond time was opened from which it transpired that the petitioner had offered to purchase the said cinema house for 26 lakhs. It was resolved by the Board of Directors that all the relevant facts be placed before the High Court and necessary direction in that regard be sought from the High Court. The High Court be apprised that the petitioner's tender was received beyond the prescribed time while the tender of Hari Krishna was received within the prescribed time and because that offer was highest it was accepted and acceptance letter was isseud to Sri Hari Krishna.
9. A counter-affidavit has been filed by Sri Hari Krishna who was impleaded as an opposite party to this writ petition wherein he averred that he was present in the office of the Nigam on 15-5-1993, hence he was definite that the tender along with draft of 25 thousands filed by the petitioner was not submitted before 11 a.m. which is evident from the fact that tenders were opened exactly at 11.30 a.m. not at 4.30 p.m. as stated by the petitioner in presence of all the bidders of different cinema halls owned by the Nigam. The Nigam owns 41 cinema houses which are situated all over the State. The Nigam advertised the sale of six cinema halls vide its advertisement contained in Annexure -1 to the writ petition. The Nigam also published the booklet containing the general rules and terms and conditions for the sale of six cinema houses. According to the terms and conditions, the parties desirous to purchase the cinema after completing the necessary formalities etc. had to submit the tenders by 11a.m. and an iron box similar to ballot boxes, which are used during election, was kept inside the office of the Nigam and the tender forms along with the draft were to be dropped in that box. Since the sale was to be held for 41 cinema halls the opposite party-Nigam had very clearly specified that those Forms which reached by 11 a.m. will be dropped in the aforementioned box; no signatures of any kind was taken from the bidders. The box was sealed exactly at 11 a.m. Those bidders who could not submit the tenders by 11 a.m. deposited the same with the Nigam. The petitioner was one of such bidders. As he had not submitted his tender within the time specified, he could not drop the same in the box, which was specifically kept for that purpose. The petitioner has tried to mislead the Court by concealing and suppressing the material facts as it did not specify before this Court the exact procedure which was adopted during the course of submission of the tender. In this regard Sri Hari Krishna has filed the comparative chart after the opening of the tenders at 11.30 a.m. which was signed by all the bidders. That chart shows that the tenders were opened at 11.30 a.m. It was mentioned in the chart that the petitioner's tender was not opened as it was received at 11.15 a.m. Upon the said comparative chart all the tenderers put up their signatures. The Committee which was appointed by the State Government for the sale of the cinema houses at Jalaun, consisted of District Magistrate, Jalaun Commissioner, Entertainment Tax, U.P. Lucknow and Managing Director, of the Nigam. In its order dated 21-5-1993 the Committee indicated that three tenders were received within the specified time, but one tender was received at 11.15 a.m. It was mentioned that on a comparative perusal of the tenders it was found that Sri Hari Krishna had offered 25 lakhs. The reserved price for this cinema house was fixed for Rupees, 20,63,000/-. As the tender of Sri Krishna was highest, hence it would be appropriate to sell the said cinema house in favour of Sri Hari Krishna. As one tender was received beyond time, hence considering the terms of the tender it was not opened as it would have been against the Rules. The Committee accepted' the offer of Sri Hari Krishna and rejected the bid of other persons.
10. Sri Hari Krishna in his affidavit dated 17th January, 1994 which was filed along with an application for vacation of the interim order dated 25-5-1993 further avesred that the petitioner did not participate in the auction and after coming to know about the amount tendered by other participants, filled the excess amount in his tender form. It was further indicated that the petitioner failed to deposit the tender form before 11 a.m, on the date fixed. After extracting the information regarding the tender amount filled by the participants, he filled the excess amount in his tender form. It was argued from the side of Sri Hari Krishna that on 25-5-1993 the petitioner deposited a draft of Rs. 14.75 lakhs in favour of the Nigam, which has been still lying with the Nigam and he has been suffering a loss, as due to the machination of the petitioner the sale has not been finalised in his favour.
11. In a supplementary counter affidavit filed on behalf of the Nigam the similar facts have been stated, which have been narrated in the affidavit filed by Sri Hari Krishna. It was stated that the petitioner came late at about 11.15 a.m. and when he found that the tender box kept in the office of the Managing Director had been sealed at 11 a.m. he requested for the receipt of the tender which was received at 11.15 A.M. This does not give any right to the petitioner as the tender were deposited by 11 a.m.
12. From the facts mentioned herein-above it is evident that the contention of the petitioner that he reached the office of opposite party No. 3 well before 11 a.m. and had filed his tender before 11 a.m. but the official did not receive it, within the specified time and received it at 11.15 a.m., does not appear to be correct in view of his own admission made in the comparative chart prepared just after 11.30 a.m. wherein it is indicated that he filed tender at 11.15 a.m. The Committee which consisted of three responsible officers also in their note and order clearly indicated that one tender was received beyond time and hence in view of the terms and conditions of the tender it was not opened. It appears that the Hon'ble single Judge on 25-5-1993 while directing the opposite parties to consider the bid tendered by the petitioner for the purchase of the picture house at Jalaun while finalising the same was misled by the averments made in the writ petition. The procedure of acceptance of tender which was averred by the petitioner in the writ petition was not the procedure which was followed by the opposite parties. He did not insert/drop his tender form into the bos which was specifically kept for that purpose before 11 a.m. He submitted the tender at 11.15 a.m. which on his persuasion was received by the official but it was not opened as it was submitted after 11.15 a.m. If a person does not fulfil the terms and conditions of the auction/ tender and suppress and conceal ihe facts and on the basis of false averments obtains an order from the Court, such a person disentitles himself for any relief in a writ petition. The advertisement inviiing the tenders did not pertain to the cinema house situate at Jalaun only. It pertained to more than 25 cinema houses situate in several districts of the State. From the proceedings of the 64th meeting of the Board of Directors held on 21 -5-1993 it transpires that the sale of three cinema houses situate at Sonbhhadra, Hamirpur and Jalaun were finalised, but as far as the sale of 22 other cinema houses was concerned, it was not finalised for the simple reason, that either the tenderers had filed their tenders beyond the prescribed time or did not offer more than the reserved price which was fixed by the Board of Directors of the Nigam; they resolved to advertise the sale of 22 other cinema houses by inviting tenders afresh. If we allow the petitioner who has filed his tender beyond the prescribed time, the tenderers of other two cinema houses who filed their tenders beyond time would in similar fashion may file writ petitions for the acceptance of their tenders, which-will unnecessarily create complications. The Board of Directors in its 64th and 65th meeting adopted a uniform policy and it cannot be said that, that policy favoured a person, or persons and disfavoured other person or persons. Hence, we are of the view that it would not be fair on the part of this Court to interfere into the matter. The Committee appointed, as well as the Board of Directors of the Nigam consisted of responsible officers. They have acted fairly in the matter and acted in accordance with the terms and conditions of the sale as contained in the advertisement and the booklet regarding the purchase of foriy one cinema houses.
13. The decision of Hon'ble Supreme Court in the case of G.J. Fernandez (AIR 1990 SC 958) (supra) cited by Mr. R.N. Trivedi to support his contention that some delay in filing of the tenders, in no case, disentitles the petitioner for consideration and acceptance of his tender for the reason that he had offered 26 lakhs for purchasing the said cinema house which was the highest bid. We have gone into the factual matrix and the law laid down involved in the case of G.J. Fernandez (supra) very deeply, but we are unable to agree with the contention advanced by the petitioner's counsel for that the aforesaid precedent helps the case of the petitioner in any manner. The ratio of the said decision appears to be that the party asking for the tender should regidly enforce the condition contained in the tender form and if a tender does not strictly comply with the requirements it is open for the party asking for the tender to consider the party for the contract and if a party comes to the Court saying that the party asking for the tender should be stopped for doing so the Court will decline the relief. It is also indicated in that case that the party asking for the tender cannot deviate from the guidelines at all in any situation, but if any deviation, if made, it should not result in arbitrariness or discrimination. In the case of G.J. Fernandez (supra), KPC made some changes in the time frame originally prescribed. If those changes affected all the tenders alike that would have not been objectionable because the benefit of those changes could be extended to all, but in case if the relaxation would be extended to one and denied to others then in such situation it would result into prejudice to a party which was denied the benefit of relaxation. In these circumstances, it was observed:--
"If, save for the delay in filing one of the relevant documents, MCC is also found to be qualified to tender for the contract, no injustice can be said to have been done to the appellant by the consideration of its tender side by side with that of the MCC and in the KPC going in for a choice of the better on the merits."
Hon'ble Supreme Court further indicated:--
"The comparative merits of the appellant vis-a-vis MCC are, however, a matter for the KPC (counselled by the TCE) to decide and not for the Court."
14. Thus it is evident that the observations of Supreme Court which were relied upon by the petitioner in no case be of any help to the petitioner; particularly for the reason that in the present case the Nigam had not given any relaxation in the matter of time schedule and it adhered to the time schedule, which was mentioned in the advertisement as well as in the booklet. Hence we are not inclined to interfere into the matter and this writ petition deserves to be dismissed.
15. But before parting with thejudgment we may point out that on the suggestion of this Court that the State Exchequer should not suffer a loss to the tune of rupees one lakh in accepting the tender of the petitioner Sri Hari Krishna opposite party readily agreed to pay Rs. 26 Lakhs instead of 25 Lakhs to the State Government for purchasing the said cinema house. In view of the aforesaid situation the opposite parties may finalise the sale of the cinema house in favour of Shri Hari Krishna on payment of Rs. 26 Lakhs. But, as the amount was enhanced on the suggestion of the Court, it would give no right to the petitioner to enhance his bid. His matter stood foreclosed as his tender was not filed within the prescribed time and was not considered for acceptance.
16. With the aforesaid observations, the writ petition, which lacks merit, is dismissed. However, in the circumstances of the case, there would be no order as to costs.
17. Petition dismissed.