Orissa High Court
Af Enterprises Ltd vs State Of Odisha And Others ..... ... on 10 January, 2023
Bench: B.R. Sarangi, B.P. Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P (C) No. 579 of 2023
And
I.A. No. 302 of 2023
AF Enterprises Ltd., New Delhi ..... Petitioner
Mr. K.P. Mishra, Sr. Adv. along with
Mr. A. Mishra, Adv.
Vs.
State of Odisha and others ..... Opposite Parties
Mr. P.P. Mohanty, AGA
Mr. P.K. Rath, Adv.[O.P. No.4 to 6]
CORAM:
DR. JUSTICE B.R. SARANGI
MR. JUSTICE B.P. SATAPATHY
ORDER
10.01.2023 Order No. This matter is taken up through hybrid mode.
01.
2. Heard Mr. K.P. Mishra, learned Senior Counsel appearing along with Mr. A. Mishra, learned counsel for the petitioner and Mr. P.P. Mohanty, learned Addl. Government Advocate appearing for the State- opposite parties.
3. Mr. P.K. Rath, learned counsel states that he has got instructions to appear on behalf of opposite parties no.4 to 6. Let him do so by filing vakalatnama. His name be indicated in the cause list as well as in the first page of the brief.
4. The petitioner has filed this writ petition challenging the proceeding dated 29.12.2022 under Annexure-5, and further seeks to quash the tender process pursuant to tender call notice under Annexure-
1.
5. Mr. K.P. Mishra, learned Senior Counsel appearing along with Mr. A. Mishra, learned counsel for the petitioner contended that earlier the petitioner had approached this Court by filing W.P.(C) No. 22291 of 2022, which was disposed of vide judgment dated 12.12.2022, by which this Court, by observing that the order dated 25.08.2022 passed by the Director, Horticulture in allowing opposite party no.4-L.M. Plastic to Page 1 of 3 participate in the tender process cannot be sustained in the eye of law, as in terms of the tender conditions, which are sacrosanct, L.M. Plastic was the defaulter, due to non-compliance of clause-2(h) of the DTCN, in not submitting the samples by 2.00 P.M. of 12.07.2022, has quashed the order dated 25.08.2022 and directed that the bid has to be finalized amongst the remaining bidders, without taking into consideration the bid of L.M. Plastic. Furthermore, this Court, while parting with the case deemed it proper to observe that henceforth while dealing with the tender matter, the Director of Horticulture shall see that any of the tender conditions is not lost sight of. It is contended that even though such clear cut direction was given by this Court, the opposite party, instead of starting the proceeding from the stage where it was left out excluding F.M. Plastic, who was a defaulter by virtue of the order passed by this Court, is now going to reconsider the matter from the stage of technical bid, excluding the petitioner herein, which is arbitrary, unreasonable and contrary to the provisions of law. It is further contended that the petitioner has already qualified in the technical bid on 12.07.2022 and, therefore, question of reopening and reconsideration of technical bid after the judgment of this Court was delivered, is a clear case of mala fide and arbitrary exercise of power by the tendering authority. Therefore, the petitioner has filed this writ petition.
6. Mr. P.P. Mohanty, learned Addl. Government Advocate appearing for the State-opposite parties contended that after the judgment was delivered, what has happened he has no instructions. Therefore, he seeks some time to obtain instructions in the matter.
7. Mr. P.K. Rath, learned counsel appearing for opposite parties no.4 to 6 states that by the time the judgment was delivered, the technical bid was not opened. Consequentially, after the judgment of this Court was delivered, the technical bid was opened, wherein it was Page 2 of 3 found that the petitioner is not eligible.
8. Issue notice to the opposite parties.
9. Two extra copies of the writ petition be served on Mr. P.P. Mohanty, learned Addl. Government Advocate appearing for the State- opposite parties no.1 and 3 within three days enabling him to obtain instructions or file counter affidavit.
10. Steps for service of notice on the opposite party no.2 by speed post be taken within three days. Office shall send notice to the said opposite party fixing an early returnable date.
11. Since Mr. P.K. Rath, learned counsel has already entered appearance on behalf of opposite parties no.4 to 6, let three extra copies of the writ petition be served on him within three days enabling him to obtain instructions or file counter affidavit.
12. As an interim measure, there shall be stay of further proceeding pursuant to tender call notice under Annexure-1, till 06.02.2023.
Issue urgent certified copy as per rules.
(DR. B.R. SARANGI) JUDGE Ashok (B.P. SATAPATHY) JUDGE Page 3 of 3