Case Note & Summary
The case involved a writ petition before the Bombay High Court, Nagpur Bench, challenging an order by the Vidarbha Irrigation Development Corporation disqualifying the petitioner from a tender process for repair and colouring work of a building under the Wardha Barrage Lift Irrigation Scheme. The estimated cost was Rs.55,97,264/-. The petitioner had submitted an online bid but was disqualified on 15.04.2025 by the Executive Engineer for not submitting an affidavit sworn before an Executive or District Magistrate as required by the tender condition; the petitioner submitted an affidavit sworn before a Notary on Rs.100 non-judicial stamp paper. The tender condition Clause 7(8) and Clause 13(vi)(7) required an affidavit regarding completeness, correctness and truthfulness of uploaded documents on stamp paper of Rs.100 before District/Executive Magistrate. The prescribed Form-6 did not specify the authority before whom the affidavit must be sworn, and a Government Resolution dated 18.10.2023 also did not impose such a requirement. The legal issues were whether the disqualification was valid and whether the notarised affidavit constituted substantial compliance. The petitioner argued substantial compliance, noting that Form-6 did not prescribe the authority, and the defect was curable. The respondent contended that strict compliance was essential and relied on the Supreme Court decision in Galaxy Transport Agencies. The Court analysed the Notaries Act, 1952, particularly Section 2(d) defining Notary and Section 8(1)(e) empowering a Notary to administer oath or take affidavit, with Section 8(2) requiring the act to be under the Notary's signature and official seal. The Court found that the petitioner's affidavit bore the Notary's seal and signature, thus being a valid notarial act. It held that the powers of Executive/District Magistrates to take affidavits are similar to those of Notaries, and since the affidavit was on the required stamp paper, the only deviation was the authority before whom sworn. The purpose of the condition was to ensure truthfulness of documents, which was served by the notarised affidavit. The Court concluded there was substantial compliance and that the rejection reflected non-application of mind. It distinguished the Galaxy Transport Agencies case. The writ petition was allowed, the disqualification order was quashed, and a direction was issued to consider the petitioner's financial bid. No costs were ordered.
Headnote
A) Contract Law - Government Tenders - Technical Eligibility - Compliance with Affidavit Requirement - Vidarbha Irrigation Development Corporation tender conditions - Tender required affidavit sworn before Executive/District Magistrate on Rs.100 stamp paper; petitioner submitted affidavit sworn before Notary - Held: Notary has power under Notaries Act, 1952, Section 8(1)(e) to administer oath and take affidavit; such act with signature and seal is a valid notarial act; substantial compliance achieved - Disqualification quashed, petition allowed (Paras 10-20). B) Notaries Act, 1952 - Functions of Notary - Power to Administer Oath - Section 8 - Notary appointed under Act can administer oath to or take affidavit from any person; act done under signature and official seal is notarial act - Notary's powers analogous to Executive/District Magistrate for taking affidavits; therefore, affidavit before Notary satisfies requirement of affidavit before Magistrate (Paras 11-15). C) Tender Law - Interpretation of Conditions - Substantial Compliance - Tender conditions to be interpreted to avoid hyper-technical rejection; non-compliance curable if substantial purpose served - Petitioner complied with essence of condition by swearing affidavit on stamp paper and getting it notarized; rejection without considering this aspect reflects non-application of mind (Paras 17-18).
Issue of Consideration
Whether disqualification of tenderer for submitting affidavit sworn before a Notary, instead of before an Executive/District Magistrate as required by tender condition, was justified; and whether such affidavit constitutes substantial compliance.
Final Decision
Petition allowed. Impugned order dated 15.04.2025 disqualifying petitioner quashed. Direction to consider petitioner's financial bid. Rule made absolute. No costs.
Law Points
- Legal points not extracted
- Notary's power to administer oath and take affidavit under Section 8(1)(e) of Notaries Act
- 1952
- Tender condition of affidavit before Executive/District Magistrate substantially complied with by affidavit before Notary
- Interpretation of tender conditions to promote substantial compliance
- Doctrine of substantial compliance applied to avoid hyper-technical rejection of tender
