Orissa High Court
Afr Pratap Chandra Sahu vs State Of Odisha And Others ..... Opp. ... on 4 June, 2020
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR ORISSA
AT CUTTACK
D.B. Writ Petition (Civil) No.13422 of 2020
AFR Pratap Chandra Sahu ..... Petitioner
-Versus -
State of Odisha and others ..... Opp. Parties
Advocate(s) who appeared in this case:-
For Petitioner : Mr. Satyabhusan Das,
Advocate.
For Opp. Parties : Mr. Debakanta Mohanty,
Addl. Government Advocate.
HONOURABLE THE CHIEF JUSTICE MR. MOHAMMAD RAFIQ
AND
HONOURABLE DR. JUSTICE B. R. SARANGI
JUDGMENT
04.06.2020 Per: Dr. B.R. Sarangi, J.
The petitioner, who is an electrical contractor, having registration no. 656 (H.T.) which was issued by the 2 competent authority on 24.11.1992 and renewed from time to time, by way of this writ petition seeks for direction to opposite party no.3 to cancel the E-Tender i.e. Bid Identification No. E.E. Koraput (OLIC) 01/2020-21 dated 01.05.2020 and notify afresh to give opportunity to the petitioner to participate in the tender process.
2. The factual matrix of the case, in hand, is that the Executive Engineer, Lift Irrigation Division, Koraput, opposite party no.3 issued an E-Tender Notice vide Bid Identification No. E.E. Koraput (OLIC) 01/2020 -21 on 01.05.2020 inviting pre-qualification along with price bid in shape of percentage rate bids in single cover system for the work "Installation & Energisation of L.I. Projects under Koraput and Malkangiri District" as described in the table detailed therein from valid civil license (D or above) Class with electrical H.T. license/tie up with Electrical (H.T.) License or vice versa. The tie up documents should be registered in any registration office only. As per the tender notice, bid documents consisting of plans, specifications, 3 the schedule of quantities and the set of terms and conditions of contract and other necessary documents were to be seen in the website www.tendersorissa.gov.in. The bid must be accompanied by earnest money deposit, cost of tender paper amount and GST Chhalan specified in Col. No. 05 and 06 as per Clause No. 08 with all other documents relating to the biddings as per DTCN. The bid documents were to be available in the website from 16.05.2020 at 10.00 a.m. to 25.05.2020 up to 5.00 p.m. for online bidding. The same was to be received only "on line" on or before 25.05.2020 by 5.00 p.m.. The bids received "on line" were to be opened at 12.00 O'clock on 26.05.2020 in the office of the Executive Engineer, LI Division, Koraput in the presence of the bidders who wished to attend bidding, and who participated in the bid can witness the opening of the bids after logging on to the site through their DSC. If the office happened to be closed on the last date of opening of the bids as specified, the bid would be opened on the next working day at the same time 4 and venue. After the date and time of receipt of bid was over, the original documents/instruments should be received by the office of the undersigned by Hand or by Post on or before 11 A.M. of 26.05.2020, during office hours on working days, failing which the bid would be rejected. The bid clarification was to be made on or before 20.05.2020 at L.I. Division office Koraput. As such, the jurisdiction of the tender will be valid for 365 days and that, along with other conditions, the authority reserves the right to cancel any or all bids without assigning any reason thereof. In view of such position, any person, who has got the eligibility criteria can apply through "on line"
within time specified as mentioned above.
2.1 When the matter thus stood, the Superintending Engineer-cum-Electrical Inspector, Koraput-opposite party no.2 vide its letter dated 19.05.2020 directed the petitioner and other electrical contractors/agencies, along with man power/machineries, to move to reach at Balasore and report to HR Manager for restoration work in the wake of 5 cyclonic storm "Amphan". Consequentially, the petitioner moved to Balasore in compliance of order dated 19.05.2020, which deprived him from participating in the process of bid, which had been issued in Annexure-2. Hence this application.
3. Mr. S. Das, learned counsel for the petitioner contended that due to compelling reasons, since petitioner could not participate in the tender process pursuant to Annexure-2, such notice is liable to be quashed, in view of the fact that for a greater cause the petitioner left for Balasore in compliance of order dated 19.05.2020 issued by opposite party no.2 to have restoration work to be done due to the cyclonic storm "Amphan". It is further contended that National Disaster Manager Authority, in exercise of power conferred under Section 6(2)(i) of the Disaster Management Act, 2005 had directed to take lock down measures in the country from 25th March, to 14th April, from 15th April to 3rd May, from 4th May to 17th May and from 18th May to 31st May, which is still continuing 6 with modifications, and since the impugned E-Tender notice was notified on 1st May, 2020, during the commencement of lock-down period, the same should be cancelled and a fresh notification should be issued enabling the petitioner, along with other similarly situated persons, to participate in the tender process.
4. Mr. D. Mohanty, learned Addl. Government Advocate contended that the reasons for which the petitioner seeks for cancellation of E-Tender notice in Annexure-2 cannot sustain in the eye of law. As such, by virtue of the E-Tender process, opportunity has been given to persons having requisite qualification to participate in the process. For some reason or other, if the petitioner could not participate in the process of tender, at his behest, the same cannot be cancelled. Thereby, it is contended that there is no valid and justifiable reason to cancel such tender at the behest of the petitioner causing prejudice to the similarly situated persons, who have already applied as per the terms and conditions specified 7 in the tender documents, and seeks for dismissal of the writ petition.
5. This Court heard Mr. S. Das, learned counsel for the petitioner and Mr. D.Mohanty, learned Addl. Government Advocate appearing for the State opposite parties, and having perused the record, with the consent of the learned counsel for the parties this writ petition is being disposed of finally at the stage of admission.
6. On the basis of the undisputed facts mentioned above, the only question which is to be decided in this writ petition is, whether at the instance of the petitioner, who could not participate pursuant to E-Tender notice in Annexure-2, the process of tender can be cancelled or not.
7. On careful analysis of the above mentioned factual aspects vis-à-vis arguments advanced by learned counsel for the parties, admittedly, opposite party no.3, which is a State authority, with a view to executing the work in question, issued E-Tender notice inviting bids from the eligible persons. Law is well settled that the State and its agencies/instrumentalities 8 must always adopt a rational method for disposal of public property and no attempt should be made to scuttle the claim of worthy applicants.
8. In Centre for Public Interest Litigation v. Union of India, (2012) 3 SCC 1, the apex Court held as follows:
"Wherever a contract is to be awarded or a licence is to be given, the public authority must adopt a transparent and fair method for making selections so that all eligible persons get a fair opportunity of competition. The State and its agencies/instrumentalities must always adopt a rational method for disposal of public property and not attempt should be made to scuttle the claim of worthy applicants."
9. The settled position of law is that merely conducting an auction is not enough; rather it must be an auction which is (i) duly publicized, and (ii) conducted fairly and impartially, and if so conducted, it is the best method for discharging the burden of "a transparent and fair method for making selections so that all eligible persons get a fair opportunity of competition... a non- discriminatory method... which would necessarily result in protection of national/public interest". Hence, it can be 9 concluded that "while transferring or alienating natural resources, the State is duty-bound to adopt the method of auction by giving wide publicity so that all eligible persons can participate in the process". Most importantly, it must be well publicized so that there are enough bidders, there must not be collusion amongst bidders, and obviously, it must be conducted fairly and impartially. Hence, the auction design and how the auction is actually conducted are vital to obtaining the socially optimal result.
10. The permissible method of issuing tender is a public advertisement. Pursuant to such advertisement, if participants have participated in the process of tender and for any reason the same will be rejected or modified, such action amounts to arbitrary exercise of power and violative of Article 14 of the Constitution of India. Therefore, if the petitioner for any reason could not be able to participate in the process of selection, may be for the reasons beyond his control, at his instance the E-Tender process initiated pursuant to Annexure-2 cannot be cancelled in order to 10 give opportunity to him to participate in the E-Tender process. As such, the petitioner has not alleged any illegalities or irregularities committed in the process of E- Tender issued by opposite party no.3, except advancing a simple argument that opposite party no.2 had directed the petitioner to move to Balasore for restoration of electricity work that was disrupted due to cyclonic storm "Amphan". That itself cannot be a ground to facilitate him to participate in the tender process by cancelling the impugned notification, particularly when the E-Tender notice was issued by the opposite parties giving opportunity to the eligible persons, including the petitioner, to participate in the tender process. If the petitioner does not choose to participate in the same, at his behest, the benefit sought cannot be extended and no direction can be issued for cancellation of such E-Tender issued by opposite party no.3 in Annexure-2. 11
11. Considering the matter from all angles, this Court is of the opinion that the writ petition merits no consideration and the same is hereby dismissed.
As Lock-down period is continuing for COVID-19, learned counsel for the petitioner may utilize the soft copy of this judgment available in the High Court's official website or print out thereof at par with certified copies in the manner prescribed, vide Court's Notice No.4587 dated 25.03.2020.
(DR. B.R. SARANGI) (MOHAMMAD RAFIQ)
JUDGE CHIEF JUSTICE
G.D.Samal,APS /
Ajaya Rana,Sr.Steno.