Orissa High Court
Subasish Pattanaik vs State Of Odisha And Others on 20 June, 2017
Equivalent citations: AIR 2017 (NOC) 932 (ORI.)
Author: Vineet Saran
Bench: Vineet Saran
HIGH COURT OF ORISSA : CUTTACK
W.P.(C) No.20040 of 2015
In the matter of an application under Article 226 of the
Constitution of India.
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AFR
Subasish Pattanaik ... Petitioner
-Versus-
State of Odisha and others ... Opp. Parties
For Petitioner : Ms. Saswati Mohapatra
For Opp. Parties : Addl. Govt. Advocate
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PRESENT:
THE HONOURABLE THE CHIEF JUSTICE MR. VINEET SARAN
AND
THE HONOURABLE MR. JUSTICE K.R. MOHAPATRA
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DECIDED ON : 20.06.2017
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Vineet Saran, CJ. In response to tender call notice dated
24.09.2015inviting tenders for construction of 2.50 lakh liters capacity water tank, the petitioner, Subasish Pattanaik as well as two other bidders, namely, Tapaswini Biswal and 2 Arta Ranjan Biswal had applied for within time, that is before the last date for submission of bids which was 26.10.2015. The date of opening of the bids was scheduled for 31.10.2015. As per the record, the bids were not opened on 31.10.2015 but on 02.11.2015 between 5.39 P.M. and 5.41 P.M., as would be clear from the Finance Bid Opening Summary dated 04.11.2015, filed as Annexure-5 to the writ petition. By the same document, that is the Finance Bid Opening Summary, it was also communicated that "The tender is hereby cancelled as a single bid has been received for 1st time tender call". Challenging the same this writ petition has been filed with a further prayer that, being the lowest bidder, the contract be awarded in favour of the petitioner.
2. It is contended that it was a case of three bidders participating in response to the tender call notice, in which the bid of the petitioner was the lowest and it is alleged that since the opposite parties, more particularly opposite party 3 no.5-Executive Engineer, were interested in obliging a particular party whose bid was not the lowest and that of the petitioner happened to be the lowest, the tender had been cancelled on the ground of there being only single bid, whereas three bidders had participated and at least two had qualified.
3. We have heard Ms. S. Mohapatra, learned counsel for the petitioner and Shri P.K. Muduli, learned Addl. Government Advocate for the State-opposite parties and perused the record. Pleadings between the parties have been exchanged. On consent of learned counsel for the parties, this petition is being disposed of at the admission stage.
4. It has been contended by the learned counsel for the petitioner that as per the tender call notice, more particularly Para-19(g)(ii), it was clearly stated that "at the time of opening of "Financial Bid", bidders whose technical bids were found responsive will be opened". It is also 4 contended that the financial bid could have been opened only after the technical bids were found to be in order.
5. Although it is contended by the learned Addl. Government Advocate that it was a Single Cover Bid System and the technical bid was to be opened along with the financial bid, but the aforesaid conditions mentioned in Para-19(g)(ii) as quoted above, it would be clear that as per the terms and conditions of the tender call notice, the financial bids of only those bidders were to be opened whose technical bids were found to be in order. Although the said guidelines have been filed as Annexure-1 to the tender call notice, but the learned Addl. Government Advocate has vehemently argued that the same were not to be followed as it was Single Bid Tender and the guidelines were to be complied with only in case of Double Bid Tender.
6. The said submission of the learned Addl. Government Advocate is not worthy of acceptance, as once the guidelines are part of the tender call notice, the opposite 5 parties cannot take a stand that though the same were part of the tender call notice but the conditions therein were not to be complied. As such, we are of the clear opinion that the financial bids of only those bidders were to be opened whose technical bids were found to be in order.
7. The stand of the opposite parties is that the tender has been cancelled on the ground of it being a case of Single Bidder. On being asked, learned Addl. Government Advocate for the State-opposite parties could not place on record any order of the tender committee by which the tender of the other bidders had been cancelled. The only document on which learned Addl. Government Advocate has relied upon is the minutes of the tender committee meeting held on 31.10.2015, which has been filed as Annexure-E/1 to the counter affidavit. Perusal of the said minutes would make it clear that the tender of the petitioner-Subasish Pattanaik was found to be in order, whereas that of the bidder Arta Ranjan Biswal was found to be not in order, as 6 he had not submitted his financial bid and other requisite documents and had also made a request to be kept away from the tendering process. The minutes of the tender committee are silent with regard to the bid of the tenderer- Tapaswini Biswal. It can thus be inferred that the bid of Tapaswini Biswal was in order, as the same had not been cancelled or found deficient by the tender committee, which is the only authorized authority to reject the bid document of any party.
8. A specific averment has been made in Para-3(c) of the writ petition that one of the bidders happens to be the relative of the local M.L.A., whom the Executive Engineer- opposite party no.5 wants to favour. In reply to the said averment, the Executive Engineer has filed his personal affidavit, wherein it is stated that he does not have knowledge as to who is the brother of the local M.L.A. Neither the Executive Engineer nor the other State-opposite 7 parties have specifically denied that no relative of the local M.L.A. was a bidder for the said tender.
9. Be that as it may, without going into the allegation of mala fides and considering the merits of the case strictly on facts, as have been stated in the writ petition and the documents available on record, it would be clear that no order has been passed by any competent authority rejecting the bid of Tapaswini Biswal. It is only the third bidder namely, Arta Ranjan Biswal, who had not filed the financial bid documents and had withdrawn his bid, which was duly recorded in the minutes of the tender committee dated 31.10.2015.
10. From the above, it is clear that it was not a case of Single Tender, as there were at least two bidders i.e. the petitioner and Tapaswini Biswal. It is also not disputed that after opening of all the three bids, the bid of the petitioner was found to be the lowest, but without assigning any adequate reason or by assigning wrong reason that it was a 8 case of Single Tender, the entire tender has been cancelled, which cannot be sustained in the eye of law.
For the reasons given hereinabove, we allow this writ petition and quash the order of cancellation of the tender committee dated 31.01.2015, communicated by the tender inviting authority on 04.11.2015, and direct the tender committee to pass a fresh order in accordance with law in the light of the observations made hereinabove as expeditiously as possible, but not later than six weeks from the date of production of the certified copy of this order before opposite party no.2-Engineer-in-Chief, P.H.E.O. Odisha. No order as to costs.
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( VINEET SARAN ) CHIEF JUSTICE ..................................
(K.R. MOHAPATRA ) JUDGE The High Court of Orissa, Cuttack Dated the 20th June, 2017/PCP/SKJ