Orissa High Court
Unknown vs Hon'Ble The Chief Justice Mr. Mohammad ... on 12 October, 2020
Bench: Mohammad Rafiq, B.R. Sarangi
W.P.(C) No. 26533 of 2020
HON'BLE THE CHIEF JUSTICE MR. MOHAMMAD RAFIQ
HON'BLE DR. JUSTICE B.R. SARANGI
02. 12.10.2020 Mr. Amitav Das, Advocate : for petitioner
Mr. A.K.Parija,
Advocate General : for State opposite parties
ORDER
Heard learned counsel for the parties by video conferencing mode.
The petitioner, by means of this writ petition, seeks to quash clause-4 contained in Annexure-D of the e- tender notice no.4470/TBPM dated 21.09.2020 in Annexure-1, as the same is contrary to clause-25 of the said e-tender notice, and also seeks for direction to the opposite parties to treat clause-4(x) of Form-A of the e- tender notice as optional, rather than mandatory.
The factual matrix of the case, as is borne out from the record, is that opposite party no.2 floated e-tender notice no.4470/TBPM dated 21.09.2020 for supply of 70 GSM Maplitho Reel Paper with water mark. The petitioner, which had supplied 500 MT in 2017-18, 4,000 MT in 2018-19 and 4,000 MT in 2019-20 to Chhatisgarh Text Book Corporation, Raipur, was unable to participate in the e-tendering process due to incorporation of clause- 4 in the technical tender. This clause was not there in the earlier tender notice and the same was introduced in tender notice dated 23.05.2018. In the said tender notice, the BoQ (price bid) was modified such that bidders will 2 have the choice to quote the price for any amount of quantity they wish to offer. The petitioner, being eligible to supply the desired material in full/part, seeks to challenge clause-4 contained in Annexure-D of the tender notice dated 21.09.2020 in Annexure-1, as it has been deprived of participating in the said tender process because of the said clause-4.
Mr. Amitav Das, learned counsel for the petitioner strenuously urged before this Court that pursuant to tender notice dated 21.09.2020, in view of incorporation of clause-4 in the technical tender (Form-A), which specifies that list of Government Departments/Semi- Government organizations to whom water mark Maplitho papers only supplied in last three years as per format enclosed to Annexure-D (Minimum 10,000 MT per year), and as per the advertisement the total quantity required to supply is 13,500 MT approximately of 70 GSM Maplitho reel Paper (with water mark), the petitioner has been deprived of participating in the tender process. As per clause-x of Form-A, millers must have manufactured and supplied the water mark Maplitho papers only with virgin pulp a minimum of 10,000 MTs per annum in the consecutive last three years to any Government Departments/Semi-Government organizations (as per Annexure-D) and for any deviation the Director will have right to reject the tender. He has also relied upon clause- 25 of the terms and conditions of the tender notice which stipulates that the Director, Tex Book Production and Marketing, Bhubaneswar reserves the right to split the 3 estimated quantity for distribution of the supply orders at lowest rates to other successful tenderer(s). Thereby, it is contended that because of these clauses the petitioner is not able to participate in the tender process and contended that in the previous year three of the bidders had been favoured by splitting the quantity for distribution of the supply orders.
Mr. A.K. Parija, learned Advocate General appearing for the State opposite parties contended that the conditions stipulated in the tender document itself are not unreasonable and, as such, the same may not be interfered with in exercise of writ jurisdiction of this Court and, more so, in case of any interference by this Court it will cause dislocation in supply of books to the children on free of cost. As such, any of the conditions stipulated in the tender notice itself does not require to be set aside and, more so, the petitioner has to participate in the proceeding being satisfied the eligibility criteria, otherwise in the event this Court accepts the bid submitted by the petitioner, similarly situated persons are to be given opportunity, which will cause grave prejudice to the opposite parties.
Having heard Mr. A. Das, learned counsel for the parties and Mr. A.K. Parija, learned Advocate General appearing for the State this Court finds that admittedly the tender notice was issued on 21.09.2020 for supply of 70 GSM Maplitho Reel Paper (with Water Mark) on online basis. As per the said tender notice, the bid documents were to be made available w.e.f. 23.09.2020, 10.00 AM 4 till 13.10.2020 5.00 PM and documents were to be downloaded during that period also. Similarly, submission of paper sample, DD of Tender Paper Cost, cash receipt of Testing Charges of paper, FDR/GB of EMD in original, Power of attorney and submission of testing fees were to be made during that time. Opening of technical bid was fixed to 14.10.2020 at 11.30 AM and, as such, the Director had reserved the right to accept or reject (fully/partly) tender without assigning any reason thereof. As per the Form-A of technical tender, Clause-4 required that a list of Government Departments/Semi Government Organizations to whom watermark Maplitho papers only supplied in last three years minimum 10,000 MT per year, was to be furnished. In view of such condition, the petitioner has not produced any materials before this Court to indicate that he had supplied 10,000 MT during a year to any Government or semi Government organizations, and the documents on which reliance has been placed by the petitioner only indicate with regard to supply of 4000 MT in last three consecutive years to Chhatishgarh Text Book Corporation, Raipur, which does not satisfy the condition. More so, the tender documents require certain conditions to be complied and that is part of the contract and if the petitioner does not satisfy the conditions stipulated in the contract the Court cannot substitute the conditions thereof to make the tender documents nugatory. As such, in exercise of power under Article 226 of the Constitution of India, conditions stipulated in the tender documents cannot be rewritten 5 by this Court. The contention raised by learned counsel for the petitioner that it may be permitted to participate in the tender process, even having not satisfied the required and stipulated condition, that itself would be contrary to the provisions of law. Meaning thereby, if such prayer of the petitioner is acceded to, similarly situated persons will be deprived of participating in the tender process.
In view of such position, this Court does not find any merit in this writ petition, which is accordingly dismissed.
As Lock-down period is continuing for COVID-19, learned counsel for the parties may utilize the soft copy of this order available in the High Court's website or print out thereof at par with certified copies in the manner prescribed, vide Court's Notice No.4587, dated 25.03.2020.
GDS/
Ajaya (DR. B.R. SARANGI) (MOHAMMAD RAFIQ)
JUDGE CHIEF JUSTICE