RASHMI METALIKS LTD. & ANR.versusKOLKATA METROPOLITAN DEVELOPMENT AUTHORITY & ORS.

                       (2013) 17 S.C.R. 345


                 RASHMI METALIKS LTD. & ANR.                          A
                                  v.
    KOLKATA METROPOLITAN DEVELOPMENT AUTHORITY
                          & ORS.
              (Civil Appeal No. 6772 of 2013)
                                                                      B
                      SEPTEMBER 11, 2013
          [T.S. THAKUR AND VIKRAMAJIT SEN, JJ.]

         Tender "'- Rejection of bid on ·the ground of non-
    compliance of one of the terms of the tenders viz. filing of C
    latest income tax return - Held: Filing of income tax return
    was not an essential, but only a collateral term - Hence
    rejection of bid (m this ground not justified.

         Tender - Rejection of bid - By the authority on the D
    ground of non-compliance of one of the terms of tender - •
    Courts below also upheld the rejection on that ground and did
    not discuss or analyse non-compliance of another term - In
    appeal to Supreme Court plea regarding non-compliance of
    another term, raised - Held: The party cannot advert to the E
    ground, to which the tendering authority had not adverted to
    - A party cannot be permitted to travel beyond the stand
    adopted in its (farlier decision - New plea - Raising of -
    Permissibility.

•        Precedent - Rule of precedence - Doctrine of stare           F
    decisis - Held: The significant characteristic of doctrine of
    stare decisis is that the judgment withstands the onslaught of
    time and metamorphoses into high authority, demanding
    reverence and adherence.
                                                                      G
         Practice and Procedure - Court proceedings - Practice
    of citing innumerable decisions - Held: Results in capital
    exhaustion of court time - The correct approach is to predicate
    arguments on the decisions which hold the field.
                                 345                                  H
    346         SUPREME .COURT REPORTS [2013) 17 S.C.R.


A       The bid of .the appell11nt..Company was disqualified
    on the ground that the sam~ did not comply with the
    terms envisaged in Clause 'J' of the invitation to tender,
    whereby the bidd.er was r1!quired to submit its latest
    income tax return alongwith its bid.
B
       The courts below held that the ·appellant-Company
  failed to comprehensively correspond to the essential
  terms of the tender in two respects: (a) the alleged
  blacklisting of the appellant-Company as postulated in
C Clause (i) of the tender and (b) company's failure to
  furnish the latest income tax return as envisaged in
  Clause (j). However, the courts did not analyse the
  applicability anp relevance of Clause (i).

       In appeal to this Court, respondent also raised the
D alleged violation of Clause (i) in addition to Clause (j).

          Allowing the appeal, the Court

       HELD: 1. So far as the rejection on the ground (i) of
  Tender of Notice is concerned,' this is~ue in its entirety
E has become irrelevant for the reason that it does not
  feature as a reason for the impugn~d rejection. This
  ground should have been arti~ulated at the very inception
  itself, and now it is not forensically fair or permissible for
  the Authority or any of 'the Respondents to adopt this
F ground for the first time in this second salvo of litigation
  by way of a side wind. The.impugned Judgment is
  indubitably a cryptic one and does not contain the
  reasons on which the' decision is predicated. Since
  reasons are not contained in the impugned Judgment
G itself, it must be set aside' on the short ground that a party
  cannot be permitted to travel beyond the stand adopted
  and expressed by it in its earlier decision. [Para 12] [358-
  E-G]

          Mohinder   Singh   Gill   vs.   The   Chief Election
H
 RASHMI METALIKS LTD. v. KOLKATA METROPOLITAN 347
           DEVELOPMENT AUTHORITY

Commissioner, New Delhi AIR 1978 SC 851: 1978 (2) SCR            A
272 - relied on.

     2. Clause (j) of the notice inviting E-tender is not an
essential element or ingredient or concomitant of the
subject NIT. In the course of hearing, the Income Tax B
Return has been filed by the Appellant-company. The
income tax was NIL, but substantial tax had been
deposited. The Income Tax Return would have assumed
the character of an essential term if one of the
qualifications was either the gross income or the net
income on which tax was attracted. In many cases this C
is a salutary stipulation, since it is indicative of the
commercial standing and reliability of the tendering entity.
This feature being absent, We think that the filing of the
latest Income Tax· Return was a collateral term, and
accordingly the Tendering Authority ought to have D
brought this discrepancy to the notice of the Appellant-
company and if even thereafter no rectification had been
carried out, the position may have been appreciably
different. It has been asserted on behalf of the Appellant-
company, and not denied by the Respondent-Authority, E
that the financial bid of the Appellant-company is
substantially lower than that of the others, and, therefore,
 pecuniarily preferable. The disqualification of the
Appellant-company on the ground of it having failed to
submit its latest Income Tax Return along with its bid is F
 not sufficient reason for disregarding its offer/bid. [Paras
 13 and 14] [359-F-H; 360-A-D]

     WB. State Electricity Board v. Patel Engineering Co. Ltd.
(2001) 2 SCC 451: 2001 (1) SCR 352; Tata Cellular v. Union
of India (1994) 6 SCC 651; Siemens Public Communication          G
Networks Private Limited v. Union of India (2008) 16 SCC
215: 2008 (15) SCR 585 - relied on.

   Sorath Builders v. Shreejikrupa Bui/dean Ltd. (2009) 11
SCC 9: 2009 (2) SCR 893 - referred to.                           H
    348        SUPREME COURT REPORTS [2013] 17 S.C.R

A       Kanhaiya Lal Agrawal v. Union of India (2002) 6 SCC
    315: 2002 (1) Suppl. SCR 284; Puravankara Projects Ltd.
    v. Hotel Venus International (2007) 10 SCC 33: 2007 (2) SCR
    215; Glodyne Technoserve Ltd. v. State of Madhya Pradesh
    (2011) 5 SCC 103: 2011 (15) SCR 930; Poddar Steel
B   Corporation v. Ganesh Engineering Works (1991) 3 SCC
    273: 1991 (2) SCR 696 - cited.

         3.1. The rule of precedence, which is an integral part
    of jurisprudence, mandates that the expos"ltion of law
    must be followed and applied even by co-ordinate or co-
C   equal Benches and certainly by all smaller Benches and
    subordinate Courts. If a co-ordinate Bench considers the
    ratio decidendi of the previous Bench to be of doubtful
    efficacy, it must comply with the discipline of requesting
    the Chief Justice to constitute a larger Bench.
D   Furthermore there are some instances of decisions even
    of a Single Judge, which .having withstood the
    onslaughts of time, have metamorphosed into high
    authority demanding reverence and adherence because
    of its vintage and following in contradistinction of the
E   strength of the Bench. This is a significant characteristic
    of the doctrine of stare decisis. The law of precedence
    and of stare decisis is predicated on the wisdom and
    salubrity of providing a firmly founded law, without which
    uncertainty and ambiguity would cause consternation in
F   society. It garners legal predictability is an essential. [Para
    6] [353-0-H]

      3.2. This Cou,rt, and even more so the High Court as
  well as the subordinate courts have to face lengthy
  arguments in each case because of the practice of citing
G innumerable decisions on a particular point of law. It is a
  capital exhaustion of Court time, lack of which has
  become critical. The corre.ct approach is to predicate
  arguments on the decision which holds the field. [Paras
  6 and 7] [353-B-C; 354-C]
H
 RASHMI METALIKS LTD. v. KOLKATA METROPOLITAN 349
           DEVELOPMENT AUTHORITY

                      Case Law Reference:                        A

    2001 (1) SCR 352             relied on        Para 5
    2002 (1) Suppl. SCR 284 cited                 Para 5

    2007 (2) SCR 215             cited            Para 5         B
    2011 (15) SCR 930            cited             Para 5

    1991 (2) SCR 696             cited            Para 5

    (1994) 6 sec 651             relied on         Para 6
                                                                 c
    2008 (15) SCR 585             relied on        Para 6

    2009 (2) SCR 893              referred to      Para 6

    1978 (2) SCR 272              relied on        Para 12
                                                                  D
     CIVIL APPELLATE JURISDICTION : Civil Appeal No.
 6772 of 2013

     From the Judgment and Order dated 11.07.2013 of the
 High Court of Calcutta in MAT No. 1031 of 2013.
                                                                  E
     Vishwanathan, Joydeep Mazumdar, Rohit Dutta,
 Shibashish Mishra, Samina, Prabhat Kumar Srivastava for the
 Appellants.

     Dr. A. M. Singhivi, Shyam Divan, Pradip Ghosh, Sanjeev
 K. Kapoor, Nitish Massey, Khaitan & Co.,Anindita Gupta,          F
 Rajesh Srivastava for the Respondents.

      The Judgment of the Court was delivered by

       VIKRAMAJIT SEN, J. 1. We are called upon to decide G
  the correctness of the impugned decision of the Division Bench
. of the High Court of Calcutta which in turn has upheld the
  appreciation of the law as also the facts of the case by a learned
  Single Judge of that Court. Thus, these courts have concurrently
  concluded that the Appellant-company had failed to H
    350          SUPREME COURT REPORTS [2013] 17 S.C.R.


A   comprehensively correspond to the essential terms of the
    tender and, therefore, its offer contained in the said tender was
    ineligible for consideration.

         2. The two terms of the subject 'Invitation to Tender' which
B   are germane to the case in hand are clauses (i) and 0) thereof,
    which read thus -

          "(i) A declaration in the form of Affidavit in a non judicial
          stamp paper should be submitted stating clearly that the
          applicant is not barred/delisted/blacklisted by any
C         Government Department/ Government Undertaking/
          Statutory Body/ Municipality and of the like Government
          Bodies in DI Pipe-supply tender during last five years and
          if any such incident is found at any point of time, the tender
          will be cancelled summarily without assigning any reason
D         whatsoever.

          0) Valid PAN No., VAT No., Copy of acknowledgement of
          latest Income. Tax Return and Professional Tax Return."

        3. It must immediately be clarified that so far as clause (i)
E is concerned, the learned Single Judge had thought it
  unnecessary to analyse its applicability and relevance, having
  come to the conclusion that a violation of clause Q) had been
  committed by the Appellant-company inasmuch as it had failed
  to file its latest Income Tax Return along with its bid. This
F position has continued to obtain even before the Division
  Bench as will be palpably clear from a perusal of the impugned
  judgment. The Division Bench, despite noting clause 0), has
  concerned itself only with the legal implications flowing from the
  alleged non-compliance of clause (i). The Division Bench has
G predicated its decision on W.B. State Electricity Board v. Patel
  Engineering Co. Ltd. (2001) 2 SCC 451 and has extracted, as
  we shall also do, the following paragraphs therefrom -

          "23. The mistakes/errors in question, it is stated, are
          unintentional and occurred due to the fault of computer
H
RASHMI METALIKS LTD. v. KOLKATA METROPOLITAN. 351
 DEVELOPMENT AUTHORITY [VIKRAMAJIT SEN, J.]
  termed as a "repetitive systematic computer typographical A
  transmission failure". It is difficult to accept this contention.
  A mistake may be unilateral or mutual but it is always
  unintentional. If it is intentional it ceases to be a mistake.
  Here the mistakes may be unintentional but it was not
  beyond the control of Respondents 1 to 4 to correct the B
  same before submission of the bid. Had they been vigilant
  in checking the bid documents before their submission, the
  mistakes would have been avoided. Further, correction of
  such mistakes after one-and-a-half months of opening of
  the bids will also be violative of clauses 24.1, 24.3 and 29.1 c
  of the ITB.

   24. The controversy in this case has arisen at the
   threshold. It cannot be disputed that this is an international
   competitive bidding which postulates keen competition
   and high efficiency. The bidders have or should have D
   assistance of technical experts. The degree of care
   required in such a bidding is greater than in ordinary local
   bids for smal! works. It is essential to maintain the sanctity ,
   and integrity of process of tender/bid and also award of a
   contract. The appellant, Respondents 1 to 4 and E
    Respondents 10 and 11 are all bound by the ITB which
   should be complied with scrupulously. In a wor~ of this
    nature and magnitude where bidders who fulfil
    prequalification alone are invited to bid, adherence to the
    instructions cannot be given a go-by by branding it as a F
    pedantic approach, otherwise it will encourage and provide
    scope for discrimination, arbitrariness and favouritism
    which are totally opposed to the rule of law and our
                                                                      ..,
    constitutional values. The very purpose of issuing n.1les/ ·
    instructions is to ensure their enforcement lest the rule of G
    law should be a casualty. Relaxation or waiver of a rule or
    condition, unless so provided under the ITB, by the State
    or its agencies {the appellant) in favour of one bidder would
    create justifiable doubts in the minds of other bidders,
    would impair the rule of transparency and fairness and H
    352          SUPREME COURT REPORTS [2013) 17 S.C.R.

A         provide room for manipulation to suit the whims of the
          State agencies in picking and choosing a bidder for
          awarding contracts as in the case of distributing bounty C1r
          charity. In our view such approach should always be
          avoided. Where power to relax or waive a rule or a
B         condition exists under the rules, it has to be done strictly
          in compliance with the rules. We have, therefore, no
          hesitation in concluding that adherence to the ITB or rules
          is the best principle to be followed, which is also in the best
          public interest."
c         4. The impugned judgment states that clause (j) cannot be
    viewed as a non-essential term and, therefore, should have
    been corrected before the submission of the tender. This
    seems to us to be chronologically or sequentially impossible;
    what was obviously meant was that failure to adhere to this tenm
D   would render the bid non-compliant and, therefore, beyond the
    pale of consideration in toto. The Division Bench also opined
    that the Appellant-company could not be granted the indulgence
    to correct this error, as 'such facility was not available to other
    bidders.' In saying so, the Division Bench, it appears to us, has
E   diluted its view that clause (j) is altogether inviolable.

        5. The Respondents have endeavoured to raise the alleged
  violation of clause (i) before us, but we are in no manner of
   doubt that this effort should be roundly rejected. This is despite
  the fact that an explanation even in this context has been offered
F
   by Mr. K.V. Vishwanathan, learned senior counsel appearing
  for the Appellants. We shall desist from making any
   observations in regard to this clause Ul since it.does not feature
   in the analysis of both the courts below. Dr. A.M. Singhvi,
  ·1earned senior counsel for the Respondents has cited the
G following cases before us : (i) W.B. State Electricity Board v.
   Patel Engineering Co. Ltd. (2001) 2 SCC 451 Para 23; (ii)
   Kanhaiya Lal Agrawal v. Union of India (2002) 6 SCC 315
   Paras 5 and 6; (iii) Puravankara Projects Ltd. v. Hotel Venus
   International (2007) 1C' SCC 33 Paras 28 to 30; (iv) Sora th
H
 RASHMI METALIKS LTD. v. KOLKATA METROPOLITAN              353
  DEVELOPMENT AUTHORITY [VIKRAMAJIT SEN, J.]

Builders v. Shreejikrupa Buildcon Ltd. (2009) 11 SCC 9 Paras A
17 and 28; and (v) Glodyne Technoserve Ltd. v. State of
Madhya Pradesh (2011) 5 SCC 103 Para 47. Mr.
Vishwanathan, learned senior counsel for the Appellants sought
to rely on Poddar Steel Corporation v. Ganesh Engineering
Works (1991) 3 SCC 273 and Kanhaiya Lal.                       B
      6. This Court, and even more so the High Court as well as
the subordinate courts have to face lengthy arguments in each
case because of the practice of citing innumerable decisions
on a particular point of law. The correct approach is to predicate C
arguments on the decision which holds the field, which in the
present case is Tata Cellular v. Union of India (1994) 6 SCC
651 rendered by a three-Judge Bench. The rule of precedence,
which is an integral part of our jurisprudence, mandates that this
exposition of law must be followed and applied even by co-
ordinate or co-equal Benches and certainly by all smaller 0
Benches and subordinate Courts. We hasten to clarify that if a
co-ordinate Bench considers the ratio decidendi of the previous
Bench to be of doubtful efficacy, it must comply with the discipline
of requesting Hon'ble the Chief Justice to constitute a larger
 Bench. Furthermore there are some instances of decisions even E
of a Single Judge, which having withstood the onslaughts of time
 have metamorphosed into high authority demanding reverence
 and adherence because of its vintage and following in
 contradistinction of the strength of the Bench. This is a
 significant characteristic of the doctrine of stare decisis. Tata F
 Cellulry has been so ubiquitously followed, over decades, in ·
 almost every case concerning Government tenders and
 contracts that it has attained heights which dissuade digression
 by even a larger Bench. The law of precedence and of stare
 decisis is predicated on the wisdom and salubrity of providing G
 a firmly founded law, without which unqertainty and ambiguity
 would cause consternation in society. It garners legal
 predictability, which simply stated, is an essential. Our research
 has revealed the existence of only one other three-Judge Bench
 decision which has dealt with this aspect of the law, namely, H
    354          SUPREME COURT REPORTS [2013] 17 S.C.R.


A   Siemens Public Communication Networks Private Limited v.
    Union of India (2008) 16 SCC 215, which is in actuality an
    anthology of all previous decisions including Tata Cellular. The
    sheer plethora of precedents makes it essential that this Court
    should abjure from discussing each and every decision which
B   has dealt with a similar question of law. Failure to follow this
    discipline and regimen inexorably leads to prolixity in judgments
    which invariably is a consequence of lengthy arguments.

          7. It is a capital exhaustion of Court time, lack of which has
    become critical. We shall, therefore, confine ourselves to Tata
C   Cellular. We are mindful of the fact that it is a legitimate
    exercise, perfectly permissible for Benches to advance the law
    provided this exercise does not lead to a conclusion which is
    irreconcilable with a binding precedent. We also would clarify
    that the manner in which a Bench appreciates the factual matrix
D   before it can obviously be of value only if a subsequent case
    presents identical facts, which remains a rarity.

          8. Tata Cellular states thus :

          "77. The duty of the court is to confine itself to the question
E         of legality. Its concern should be :

           1.    whether a decision-making authority exceeded its
                 powers?

           2.    committed an error of law,
F
           3.    committed a breach of the rules of natural justice,

           4.    reached a decision which no reasonable Tribunals
                 would have reached or,
G
           5.    abused its powers.

          Therefore, it is not for the Court to determine whether a
          particular policy or particular decision taken in the fulfilment
          of that policy is fair. It is only concerned with the manner
H
 RASHMI METALIKS LTD. v. KOLKATA METROPOLITAN               355
  DEVELOPMENT AUTHORITY [VIKRAMAJIT SEN, J.]
    in which those decisions have been taken. The extent of A1
    the duty to act fairly will vary from case to case. Shortly put,
    the grounds upon which an administrative action is subject
    to control by judicial review can be classified as under :

      (i)     Illegality: This means the decision-maker must
                                                                   8
              understand correctly the law that regulates his
              decision-making power and must give effect to it.

      (ii)    Irrationality.namely, Wednesbury unreasonableness.

      (iii)   Procedural impropriety.                              c
     The above are only the broad grounds but it does not rule
     out addition of further grounds in course of time. As a matter
     of fact, in R. v. Secretary of State for the Home
     Department, ex parte Brind, (1991) 1 AC 696, Lord
     Diplock refers specifically to one development namely, the D
     ppssible recognition of the principle of proportionality. In all
     these case$ the test to be adopted is that the Court should,
    _:'consider whether something has gone wrong of a, nature
     and degree which requires its intervention."
                                                                   E
      9. Since we have been deluged with decisions, we must
mow consider whether there have been any material additions
to the law which per force are compatible with Tata Cellular.
 W B. State Electricity Board reiterated the exposition of law
contained in Tata Cellular, as it had to do. On facts it opined F
that 'once the unit rate and line item total are filled in by the
bidder, they are unalterable though arithmetical errors can be
 rectified'. So far as the law is concerned the position remains
the same significantly, as it must do; the facts bear no semblance
to those in hand. The Court held that the private·parties could G
 not bind the Government by implication. Although Sorath
 BuHders makes no reference to Tata Cellular but nevertheless
 is not incongruous to it; otherwise it would have been rendered
 per incuriam. It merely reiterates that while reasonableness in
 the Wednesbury mould is an integral part of administrative law H
    356         SUPREME COURT REPORTS [2013) 17 S.C.R.

A   it has no relevance in contractual law; on facts this Court held
    that since documents had not been despatched in accordance
    with the specified time schedule, the bid which had already
    been received on-line could correctly not be considered.
    Glodyne Technoserve also applies Tata Cellular; but on the
B   factual matrix sounds a discordant note so far as the
    Respondents who rely on it are concerned, inasmuch as it
    recognises that it fell within the discretionary domain of the
    concerned Authority whether or not to consider the documents
    (in that case an ISO Certification) which had not been submitted
C   as per tender stipulations. Kanhaiya Lal, relied upon by Shri
    Vishwanathan, talks in the same timbre in that it distinguishes
    between essential and collateral terms of a tender and in the
    latter case allciws elbow room for exercise of discretion.
    Although it may be seen as a facet of Wednesbury
    reasonableness, this decision can be seen as adding another
0
    factor to Tata Cellular viz., the Court is empowered to separate
    the wheat from the chaff. In this exercise the Court can
    segregate the essential terms forming the bulwark of the
    compact, and whilst ensuring their strict adherence, can allow
    leniency towards the compliance of collateral clauses. This
E   analysis of the cited case-law shows that there is little or no
    advantage to be gained from the manner in which the Court
    has responded to the factual matrix as other Courts may
    legitimately place emphasis on seemingly similar facts to arrive
    at a different conclusion. But the ratio decidendi has to be
F   ad"ered to. Counsel must therefore exhibit circumspection in
    the 1umber of cases they cite. The three-Judge Bench in Tata
    Cellular is more than sufficient to adumbrate the law pertaining
    to tenders; the later decision of the co-ordinate Bench in
    Siemens is in the nature of annals of previous decisions on the
G   point.

         10. With this brief analysis of the decisions cited at the Bar,
    we shall now return to the essential factors that shall determine
    our decision. The two clauses that have been debated before
    us have already been reproduced by us above. The learned
H
 RASHMI METALIKS LTD. v. KOLKATA METROPOLITAN 357
  DEVELOPMENT AUTHORITY [VIKRAMAJIT SEN, J.]

Single Judge had returned the finding that the Appellant-             A
company's tender did not correspond to the essential term of
the 'Invitation to Tender' in two respects :

       (a)   The alleged blacklisting of the Appellant-company
             as postulated in clause (i); and                         B

       (b)   The Appellant-company's failure to furnish/forward
             the latest Income Tax Return, as envisaged in
             clause (j).

    11. The letter rejecting the Appellant-company's offer reads·     c
thus:

      "Subject: KMDA: Disqualify for Tender No.:01/ KMDA I
      MAT

      I CE/2013-2014                                                  D

      Date _:__Moo, 22 Jul 2013 18:13:22 +0530 (IST)

      From: tender tender@eternderwizard.com

      To: sales.marketingdomestic@rashmigroup.com                     E

      Dear RASHI METALIKS LIMITED,

      Important Notice:

      This is to inform that your bid has been disqualified for the   F
      tender invited by KMDA

      Tender No.: 01 I KMDA I MAT I CE I 2013-2014

      Line No.: 01
                                                                      G
  \
      Name of Work : SUPPLY and DELIVERY OF
      DIFFERENT DIAMETERS OF DISS K 7 and K 9 PIPES
      AT DIFFERENT LOCATION WITHIN KOLKATA
      METROPOLITAN AREA
                                                                      H
    358          SUPREME COURT REPORTS [2013] 17 S.C.R.


A         Reason for Disqualification : company not having
          submitted its latest income tax return along with its Bid.

          With regards

          Tendering Authority"
B
         12. So far as the first point is concerned, it needs to be
   dealt with short shrift for the reason that the Courts below have
   not thought it relevant for discussion, having, in their wisdom,
   considered it ~ufficient to non-suit the Appellant-company for
c its failure on the second count. It has, however, been explained
   by Mr. Vishwanathan, learned Senior Counsel for the Appellant-
   company that at the material time there was no blacklisting or
   delisting of the Appellant-company and that in those
   circumstances it was not relevant to make any disclosure in this
0 regard. The very fact that the Tendering Authority, in terms of
   its communication dated 22nd July 2013 had not adverted to
   this ground at all, lends credence to the contention that a valid
   argument had been proffered had this ground been raised.
   Regardless of the weight, pithiness or sufficiency of the
E explanation given by the Appellant-company in this regard, this
   issue in its entirety has become irrelevant for our cogitation for
   the reason that it does not feature as a reason for the impugned
   rejection. This ground should have been articulated at the very
   inception itself, and now it is not forensically fair or permissible
   for the Authority or any of the Respondents to adopt this ground
F for the first time in this second salvo of litigation by way of a
   side wind. The impugned Judgment is indubitably a cryptic one
   and does not contain the reasons on which the decision is
   predicated. Since reasons are not contained in the impugned
   Judgment itself, it must be set aside on the short ground that a
G party cannot be permitted to travel beyond the stand adopted
   and expressed by it in its earlier decision. The following
   observations found in the celebrated decision in Mohinder
   Singh Gill vs. The Chief Election Commissioner, New Delhi, AIR
  .1978 SC 851 are relevant to this question :
H
RASH Ml METALIKS LTD. v. KOLKATA METROPOLITAN              359
 DEVELOPMENT AUTHORITY [VIKRAMAJIT SEN, J.]
    "8. The second equally relevant matter is that when a          A
    statutory functionary makes an order based on certain
    grounds, its validity must be judged by the reasons so
    mentioned and cannot be supplemented by fresh reasons
    in the shape of affidavit or otherwise. Otherwise, an order
    bad in the beginning may, by the time it comes to court        B
    on account of a challenge, get validated by additional
    grounds later brought out. We may here draw attention to
    the observations of Bose J. in Gordhandas Bhanji (AIR
    1952 SC 16) (at p.18):

            "Public orders publicly made, in exercise of a         C
            statutory authority cannot be construed in the light
            of explanations subsequently given by the officer
            making the order of what he meant, or of what was
           'in his mind, or what he intended to do. Public
            orders made by public authorities are meant to         D
            have public effect and are intended to affect the
            acting and conduct of those to whom they ·are
            addressed and must be construed objectively with
            reference to the language used in the order itself.
                                                                   E
           Orders are not like old wine becoming better as
           they grow order."

     13. So far as clause Ul of the detailed notice inviting E-
tender No.01/KMDA/MAT/CE/2013-2014 dated 10.5;2013
emanating from the office of the Chief Engineer is concerned,      F
it seems to us that contrary to the conclusion in the impugned
judgment, the clause is not an essential element or ingredient
or concomitant of the subject NIT. In the course of hearing, the
Income Tax Return has been filed by the Appellant-company
and scrutinized by us. For the Assessment Year 2011-2012,          G
the gross income of the Appellant-company was
Rs.15,34,05,627, although, for the succeeding Assessment
Year 2012-2013, the income tax was NIL, but substantial tax
had been deposited. We think that the Income Tax Return would
have assumed the character of an essential term if one of the      H
    360         SUPREME COURT REPORTS (2013) 17 S.C.R.

A qualifications was either the gross income or the net income
  on which tax was attracted. In many cases this is a salutary
  stipulation, since it is indicative of the commercial standing and
  reliability of the tendering entity. This feature being absent, we
  think that the filing of the latest Income Tax Return was a
B collateral term, and accordingly the Tendering Authority ought
  to have brought this discrepancy to the notice of the Appellant-
  company and if even thereafter no rectification had been
  carried out, the position may have been appreciably different.
  It has been asserted on behalf of the Appellant-company, and
c not denied by the learned counsel for the Respondent-Authority,
  that the financial bid of the Appellant-company is substantially
  lower than that of the others, and, therefore, pecuniarily
  preferable.

       14. In this analysis, we find that the Appeal is well founded
D and is allowed. The impugned judgment is accordingly set
  aside. The disqualification of the Appellant-company on the
  ground of it having failed to submit its latest Income Tax Return
  along with its bid is not sufficient reason for disregarding its
  offer/bid. The Respondents are directed, therefore, to proceed
E further in the matter on this predication. The p~rties shall bear
  their respective costs.

   Kalpana K. Tripathy                                Appeal allc;iwed.