National Trading Corporation vs Bihar Rajya Beej Nigam Limited & Ors

Heard Mr. Suraj Samdarshi, learned counsel for the petitioner and Mr. Sourendra Pandey, learned counsel appearing on behalf of the respondent,

Bihar Rajya Beej Nigam Ltd. Petitioner in the present writ application seeks cancellation of the entire tender process arising out of the Tender Notice

No. Processing-01/2018-19 floated by the respondent no. 1, Bihar Rajya Beej Nigam Ltd. for supply of HDPE and non-woven bags on the ground

that in terms of the tender, sealed envelopes were invited as per clause 1, 6 and 9 of the notice inviting tender which is Annexure -1 to the writ

application. Petitioner also seeks a direction upon the respondent no. 1 not to open the financial bid as the technical bids have been opened contrary to

the terms of the tender itself and except for the petitioner none of the tenderers had submitted the tender in sealed cover. The only question which is

required for adjudication is whether the tenderers had filed the tenders in sealed cover as stated in the terms of the tender.

Learned counsel for the petitioner submits that the meaning of seal has been elaborately dealt in the case of Datta Gyanaba Bokde Vs. V.C.

Marathwada University Aurangabad & Ors, since reported in 1990 Mh. L. J. 775 at para-4:

“……The short tender notice issued by the University at two places mentions that the tenders should be sealed. Notice clearly stipulated that the

tenders must be sealed ones. The first and the second respondents were not acting aimlessly in insisting upon this requirement and certainly this was

not a meaningless or a futile exercise, it has a definite purpose. Shri Ghatge, the learned counsel for the Respondents Nos.

1 and 2, invited our attention to the meaning of the word “seal†(v.t.) as given in the Shorter Oxford English Dictionary in its 3rd Edition. The

meaning given is as follows:-

“To fasten with or as with a seal. To fasten (a folded letter or other document) with melted wax or some other plastic material and impress a seal

upon this so that opening is impossible unless the seal is broken.†Shri Ghatge submitted that this dictionary also gives a further meaning of the verb

“seal†as “to fasten up (a letter, parcel) with sealing wax, gum or like. “Relying upon this dictionary meaning, it was submitted by Shri

Ghatge that even pasting by gum would also come within the meaning of sealing, as it is not necessary to use wax as a sealent. In this context, it will

have to be borne in mind that the purpose of sealing an envelope which contains a letter or a parcel would be to see that unless the seal which is

fastened to the said envelope is broken, it would not be possible to open the envelope or to penetrate into it. This has also been indicated in the

dictionary meaning we have quoted above. It means that it should be fastened and impressed upon by a seal in such a manner that it would not be

possible to open the envelope without breaking the seal. It has not been prescribed in the tender notice as to how the seal should be, but the

requirement clearly is that the tender must be a sealed one. We do not think that mere pasting of an envelope would ensure that nobody could open it

and re-paste it.â€​

Learned counsel for the respondent-Bihar Rajya Beej Nigam Ltd., however, contends that there were five applicants to the said tender and all the

tenders were filed in sealed cover. While four of the applicants had put Cello Tape which is plastic material, petitioner had sealed his tender by use of

wax as a sealant. He submits that sealed cover would mean that unless the seal which is fastened to the said envelope is broken it would not be

possible to open the envelope or to penetrate into it. The mode of sealing by other four tenderers was by fastening the envelope by sealing it by Cello

Tape and it would not be possible to open the envelope without breaking the seal. The case cited by the petitioner is of pasting the envelope and is

quite distinct from sealing the envelope with Cello Tape which is a plastic material and which has been used for sealing the envelopes of four

tenderers ensures privacy into contents of the envelope and renders it impervious. He submits that earlier also the same system of sealing was

adopted by other tenderers but in the earlier tender the petitioner who had sealed his tender with wax was the successful bidder and the sealing by

Cello Tape by other tenderers was not challenged by the petitioner. He further submits that after participating in the technical bid having failed, (as

from Annexure-A to the counter affidavit it is evident that the technical bid of the petitioner was rejected because copy of the partnership deed was

not submitted) the petitioner has challenged the mode of sealing. He further submits that as per terms and conditions of the tender clause 20 under

settlement of disputes provides that the dispute or difference arising out of or in connection with this tender or acceptance thereof, on the contract

entered or consequence thereof shall be decided by arbitration.

However, learned counsel for the petitioner submits that as per clause 20 of the tender, it is the Managing Director the Nigam who would be a sole

arbitrator which is in violation of Section 12 (5) (d) of the Arbitration and Reconciliation Act, 1996.

Counsel for the respondent no. 1, Bihar Rajya Beej Nigam Ltd. on 23.07.2018 was directed to produce original envelopes of the tenderers relating to

technical bids. Five Envelopes of all tenderers has been produced. From perusal of the envelopes except the petitioner who has put a sealed wax on

his envelope the other four applicants have sealed their envelopes by means of Cello Tape.

As per Concise Oxford English Dictionary, 12th Edition the meaning of seal is: “a device or substance used to join two things together or render

something impervious: the state or fact of being joined or rendered impervious with a seal.†Sealing of the documents by the other four tenderers

have been found to be sealed with Cello Tapes. Use of Cello Tape as a sealant is an equally effective method for sealing as unless the seal is broken

it is not possible to open the envelope or to penetrate into it. Cello Tape is nothing but a plastic material used for sealing and in the present case the

envelope of the technical bid of the tenderers and opening the envelope is impossible without breaking the seal. Hence, in my opinion, the sealing by

way of plastic material or cello tape so as to render the content impervious is also one of the methods of sealing. Thus, the sealed envelopes by means

of plastic material or cello tape used for sealing the tender by the tenderers also renders it impervious and acceptable submission of sealed tenders by

the tenderers.

Writ application has no merit. It is dismissed.

The envelopes of the tenderers in connection with the present Tender Notice No. Processing-01/2018-19 is returned to the counsel for the respondent

no. 1, Bihar Rajya Beej Nigam Ltd.