Orissa High Court
Gangadhar Jena vs State Of Odisha And Others on 17 August, 2017
Author: Vineet Saran
Bench: Vineet Saran
HIGH COURT OF ORISSA : CUTTACK
W.P.(C) No.19914 of 2016
In the matter of an application under Articles 226 and 227
of the Constitution of India.
AFR
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Gangadhar Jena ....... Petitioner
-Versus-
State of Odisha & others ...... Opp.Parties
For Petitioner : M/s. Bibhu Prasad Das, S.N. Das &
D.Mohanty
For Opp. Parties : Mr. B.P. Pradhan, A.G.A.
M/s. D.K. Dwibedi, S.S. Padhi &
S. Dwibedi (for O.P.4)
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P R E S E N T:
THE HONOURABLE THE CHIEF JUSTICE MR. VINEET SARAN
AND
THE HONOURABLE DR. JUSTICE B.R. SARANGI
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DECIDED ON : 17.08.2017
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Vineet Saran, CJ. The challenge in this writ petition is to the
order dated 28.10.2016 passed by the opposite party
no. 2 whereby the Tender Call Notice dated 18.03.2016
has been cancelled.
2. The primary question involved in this petition
is as to whether the Tendering Authority would be
justified in cancelling the Tender Call Notice, without
assigning any reason, even after the Tender Evaluation
Committee found two tenders to be valid, and the price
bids were opened and recommendation made to the
State Government for acceptance of the tender of the
lowest bidder. The other question to be considered is
whether the reason assigned in the counter affidavit for
passing the cancellation order can now be looked into
and considered or not; and if yes, then the reasons so
assigned in the counter affidavit were justified or not.
3. The brief facts of the case are that in response
to the Tender Call Notice dated 18.03.2016 issued by
opposite party no.2-Chief Engineer, World Bank
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Project, Odisha, for "Construction of H.L. Bridge over
river Paika near Tipiri on Rahama-Khosalplur-
Gobardhanpur road in the district of Jagatsinghpur
under NABARD Assistance RIDF-XXII", three bidders
had submitted their bids, which included the petitioner
as well as C.P.Mohanty & Associates (private opposite
party no.4) and one Eastern India Construction Private
Limited. The Tender Evaluation Committee, vide its
report dated 20.06.2016, found the bid of the opposite
party no.4 to be technically invalid and, as such, the
price bids of the other two bidders, found to be
technically qualified (i.e. the petitioner and Eastern
India Construction Private Limited,) were opened on
21.06.2016. The price quoted by the petitioner was found to be the lowest, which was 4.39% above the estimated cost. The petitioner was thereafter called for negotiation for lowering his bid price, to which the petitioner responded and assigned reasons for being unable to lower the price offered by him for execution of the work. After the petitioner declined to lower his bid, 4 which was conveyed lastly by communication dated on 5.7.2016, the opposite party no.2-Chief Engineer, on 02.08.2016, recommended to the State Government for finalization of the contract in favour of the petitioner, who was the lowest bidder. There was no communication with the petitioner after 05.07.2016, by which the petitioner had expressed his inability to negotiate the price. Then, after a gap of nearly three months, on 28.10.2016, the impugned order cancelling the Tender Call Notice dated 18.03.2016 was passed by the opposite party no.2. Challenging the same, this writ petition has been filed, with a further prayer to award the contract in favour of the petitioner.
4. We have heard Shri B.P. Das, learned counsel for the petitioner, and Shri B.P. Pradhan, learned Addl. Government Advocate appearing for the State-opposite parties no.1, 2 and 3, as well as Shri S. Dwibedi, learned counsel for the private opposite party no.4 at length and carefully perused the record. Pleadings 5 between the parties have been exchanged and with consent of learned counsel for the parties, this writ petition is being disposed of at the admission stage.
5. The submission of the learned counsel for the petitioner is that the impugned order has been passed without assigning any reason whatsoever. It is contended that the reasons assigned in the counter affidavit cannot be looked into and considered for deciding this case. Learned counsel submits that it is settled legal position that the explanation given subsequently in the counter affidavit, after passing of the order of cancellation, is not to be taken into account, in the absence of any reason assigned in the cancellation order. It is contended that in the counter affidavit it is disclosed that after the bid was accepted by the Tendering Authority and sent for approval of the State Government on 02.08.2016, an enquiry was got conducted, which was on the basis of a complaint dated 16.08.2016 received by the opposite party no.3. 6 The said complaint was to the effect that the petitioner had not furnished any certificate of experience with regard to completion of the construction work, as the performance certificate submitted was only with regard to ongoing projects, and not completed projects. It was also the ground taken in the complaint that the petitioner did not have any experience for execution of any "bridge work."
5.1. Learned counsel for the petitioner contends that in the Tender Call Notice, the requirement for the bidder was to have "executed" similar nature of work, as would be clear from Clause 121.3(b) of the Tender Call Notice, where the word used is "executed" and not "completed". It is further contended that the execution of work included the "work in progress" as well as the "completed work" relating to "Civil Engineering Construction Works", as has been clearly spelt out in Clause 121.3(a) of the Tender Call Notice. It is thus submitted that since the petitioner had work experience of having executed works as required in the 7 Tender Call Notice, he fulfilled all the criteria and was thus rightly found to be technically qualified by the Tender Evaluation Committee on 20.06.2016, after which the financial bid of the petitioner was opened, along with that of the other qualified bidder. 5.2. Mr. B.P. Das, learned counsel for the petitioner further submits that the Tender Evaluation Committee did not have the power to review its own order/recommendation made on 20.06.2016, and that too behind the back of the petitioner, without giving him any opportunity, as has been done in the present case. By the subsequent report of the Tender Evaluation Committee dated 16.09.2016, the petitioner has been held to be technically disqualified on the ground that he has no experience of having "completed" similar nature of works. On such basis, the impugned order is said to have been passed on 28.10.2016, without assigning any reasons. Learned counsel vehemently contends that the petitioner had the 8 technical qualification of having successfully "executed" similar nature of work of "Civil Engineering Construction" as was required by the Tender Call Notice dated 18.03.2016.
5.3. It has lastly been submitted that cancellation of the tender, after the price bid has been opened, would put the petitioner at a disadvantage in the subsequent tender, as the price quoted by the petitioner (who was the lowest bidder) would be known to all. It is thus urged that the impugned order dated 28.10.2016 is unreasonable and wholly illegal, as even if the reasons given in the counter affidavit are to be considered, then also the impugned order has been passed on grounds which are contrary to the conditions laid down in the Tender Call Notice dated 18.03.2016 and, as such, the same is liable to be quashed and the tender of the petitioner is liable to be accepted. To substantiate his contention, he has relied upon the judgments of the apex Court in Union of India v. Dinesh Engineering Corporation and another, AIR 9 2001 SC 3887, as well as of this Court in M/s Shree Ganesh Construction v. State of Orissa and others, 2016 (II) OLR 237 and M/s. D.K. Engineering & Construction v. State of Odisha and another, 2016 (II) OLR 558.
6. Per contra, Shri B.P. Pradhan, learned Additional Government Advocate appearing for the State-opposite parties has submitted, that as per the conditions laid down in the Tender Call Notice, the Tendering Authority has the right to cancel the tender without assigning any reason, and as such no interference by this Court is warranted in the present case. He, however, has submitted that though reasons may not have been assigned in the impugned order, but from perusal of the averments in the counter affidavit, it would be clear that there were sufficient reasons for cancellation of the tender as the petitioner, who may have been the lowest bidder, but was later found not to be qualified as he had no experience of having 10 "completed" any "bridge work"", and after enquiry, a fresh report was obtained on 31.08.2016, in which it was opined that the tender of the petitioner should be rejected for not having the pre-requisite qualification of having done any "bridge work". It was on such basis that in the proceeding of the subsequent Tender Evaluation Committee, in its meeting on 16.09.2016 reevaluated the tender of the petitioner at Item no.4 of its report, and recommended for obtaining the approval of the State Government for cancellation of tender and for invitation of fresh tender. Further, the Committee required the Tendering Authority to ensure that henceforth, the work experience of "completed work"
alone be taken into account while assessing the experience of "similar nature of work".
It has thus been submitted by learned Additional Government Advocate that there was
sufficient reason on record for cancellation of the tender of the petitioner, and thus prayed that the writ petition be dismissed. To substantiate his contention, 11 he has relied upon the judgment of this Court in Chandra Sekhar Swain v. State of Odisha and others, 2017 (I) OLR 666.
7. Shri S. Dwibedi, learned counsel for private opposite party no.4 has submitted, that in the subsequent Tender Call Notice issued on the same date on which the cancellation order was passed, i.e. on 28.10.2016, opposite party no.4 has been found to be the lowest bidder and, as such, his bid should be accepted, being lower than that of the petitioner submitted in response to the Tender Call Notice dated 18.3.2016, which has been cancelled. It is, however, not denied that in response to the earlier Tender Call Notice dated 18.03.2016; the opposite party no.4 had participated and was found to be disqualified by the Tender Evaluation Committee in its first meeting itself held on 20.06.2016. He has, however, urged that since acceptance of the bid of the petitioner would cause financial loss to the Government, as after the 12 cancellation of the earlier tender call notice, a fresh Tender Call Notice has been invited in which the bid of the petitioner was lower, the same would adversely affect the revenue interest of the State, and, as such, this Court should thus not interfere with the cancellation order. To substantiate his contention, he has relied upon the judgment of the apex Court in State of Jharkhand and others v. M/s. CWE-SOMA Consortium, AIR 2016 SC 3366.
8. It is a fact that in the impugned order dated 28.10.2016, no reason has been assigned for cancellation of the Tender Call Notice dated 18.03.2016. It is settled law that reasons assigned subsequently in the counter affidavit are not to be taken into consideration in view of the Constitution Bench judgment of the apex Court in Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi, AIR 1978 SC 851, wherein it has been held as follows:
" ...... when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be 13 supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out."
Orders are not like old wine becoming better as they grow old.
Similarly in Commissioner of Police, Bombay v. Gordhandas Bhanji, AIR 1952 SC 16, the apex Court held as follows:
"Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."
, We are thus of the opinion that reasons given in the counter affidavit are not to be taken into account for considering the correctness of the impugned order of cancellation.
9. However, even if we are to consider the same, then from the counter it is evident that the order of cancellation has been passed on the basis of an enquiry 14 report submitted on 31.08.2016, which was on the complaint made by certain persons on 16.08.2016. It is firstly not understood as to how such complaint could have been entertained after the Tender Evaluation Committee had submitted its report on 20.06.2016, where after the Tendering Authority has accepted the bid of the petitioner and forwarded the same to the State Government for its approval. Admittedly, the complaint was entertained without the petitioner having been given any opportunity, as even the copy of the same was not furnished to the petitioner. Thereafter, an enquiry was conducted, which was also admittedly behind the back of the petitioner and without affording him an opportunity to participate in the enquiry proceedings. As such, in the facts of the case, we are of the view the enquiry proceedings, held behind the back of the petitioner, were not proper, and thus no action could have been taken on the basis of such enquiry report.
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10. Further, even if it is presumed that a proper enquiry was held on the basis of which a report was submitted on 31.08,2016, then we have to now consider as to whether there was any valid reason given in the said report for reviewing its earlier report dated 20.06.2016 and declaring the tender of the petitioner to be technically disqualified.
In the subsequent report dated 31.08.2016, the Chief Engineer-opposite party no.2 has accepted that the petitioner has work experience of having "executed" works of "Construction of Civil Engineering"
of substantially higher amount than what was required in the Tender Call Notice dated 18.03.2016. According to the said report, the experience should have been that of "bridge of work" which had been "completed". While considering the work experience of the petitioner, the Chief Engineer has, in its report, quoted and considered only sub-clauses (b) and (c) of Clause 121.3 of the Tender Call Notice, but avoided to either quote or consider sub-clause (a) of the said Clause 121.3, which 16 was also relevant for determination of the qualification of the tenders.
For proper appraisal and ready reference, Clause 121.3 of the Tender Call Notice is reproduced as under:
"121.1 ----------------------------
121.2 ---------------------------
121.3. General Experience The applicant shall meet the following minimum criteria:
a) Average annual turnover (defined as billing for works in progress and completed in all classes of Civil Engineering Construction works only) over the last five years of 40 percent of the value of contract/contracts applied for.
The works may have been executed by the Applicant as prime contractor or as a member of joint venture or sub contractor. A sub contractor, he should have acquired the experience of execution of all major items of works under the proposed contract. In case a project has been executed by a joint venture weightage towards experience of the project would be given to each joint venture in proportion to their participation in the joint venture.
For these a certificate from the employer shall be submitted along with the application incorporating clearly the name of the work, contract Value, billing amount, date of commencement of works, satisfactory performance of the Contractor and any other relevant information.
b) Executed in any year, in the last five years of the base year as per Para 121.2 above, any item of 17 work as indicated in Contract Data. To arrive at this criteria, experience certificates issued by principal employer as per Para 121.3 (a) during last five years will be considered for evaluation.
c) For evaluation on experience as required at 121.3
(b) above, the bidder must have experience as a prime contractor or nominated sub-contractor in a similar item of work for which the information should be furnished as per requirement of Clause 13 above and in the forms in Schedule- D1 & D2 supported with experience certificate not below the rank of Executive Engineer.
121.4 - - - - - - - - - - - - - - "
11. From a conjoint reading of sub-clauses (a), (b) and (c) of the Clause 121.3 of the Tender Call Notice relating to General Experience, it is clear that what was required, was experience of "execution" of "similar nature of work"; and not "completion" of "similar nature of work". Sub-clause (a) clearly mentions that "work in progress" as well as "completed work" should be taken into account while evaluating the experience. Sub- clause (a) further clarifies that the class of work which was to be considered for such experience was "Civil Engineering Construction Work". Clause 13 of the Tender Call Notice also speaks of similar work, which 18 has to be read along with Clause 121.3(a), and cannot be read in isolation. Sub-clause (c) of Clause 121.3 also speaks of similar nature of work, which is also to be read along with sub-clause (a), which specifies the nature of the work to be "Civil Engineering Construction Works". Learned counsel for the opposite parties have not been able to point out that how the "bridge work" is to be treated as "similar nature of work", which is nowhere mentioned in the Tender Call Notice.
12. The word "complete" means as follows:
"To finish; accomplish that which one starts out to do."
"With no part, item or element lacking [S.4, Indian Contract Act ( 9 of 1872)]; [S. 64(2), Sale of Goods Act, (3 of 1930)]; brought to an end; to accomplish."
In Chhotey Lal Bharany v. CIT, (1986) 161 ITR 552 (Del.), while dealing with the provisions contained under Income-tax Act (43 of 1961), S. 145, the Delhi High Court held that the word 'complete' in 19 the context of Section 145 of the Act means free from deficiency, entire or perfect.
Similarly, the word "execute" means as follows:-
"Execute. Carry into effect (as, to execute a plan or command : to execute a decree or order of a Court; to execute a judicial sentence); To make a legal instrument valid ( as, to execute a deed is to give it validity by signing or signing and sealing as required by law; to discharge functions (as, execute an office); inflict capital punishment or ( as, the execution of a prisoner on whom sentence of death has been pronounced.
A command to the system to perform a function. You usually need to set the function up; when you execute the command, the function occurs. Some systems have a special : "execute" or "enter" key; others use the return key as the execute key".
In Rajendra Pratap Singh v. Rameshwar Prasad, (1998) 7 SCC 602 : AIR 1999 SC 37, the apex Court held that the word 'execute' means ' to complete as a legal instrument; to perform what is required to give validity to.
In WILLIAM R. ANSON, Principles of the Law of Contract 26 n. (ARTHUR L. CORBIN ed., 3d Am. ed. 1919), The term 'executed' means 'executed' is a slippery word. Its use is to be avoided except when 20 accompanied by explanation. Executed consideration is also used to mean past consideration as opposed to present or future. A contract is frequently said to be executed when the document has been signed, or has been signed, sealed, and delivered. Further, by executed contract is frequently meant one that has been fully performed by both parties.
In Mistry Babulal Tulsidas v. Sayla Gram Panchayat, District Surendranagar, AIR 1971 Guj 96, it has been held that "executed" would mean 'making or bringing into existence' a contract by going through the formalities necessary to the validity thereof. It does not necessarily mean that whenever a word 'execute' is employed it must refer to a document in writing.
Taking into consideration the meaning of the words "complete", "execute" and "executed" mentioned above, and applying the same to the present context, 21 this Court has to examine the conditions stipulated in the tender documents.
13. Further, the subsequent report of the Tender Evaluation Committee dated 16.09.2016, wherein recommendation has been made for cancellation of the Tender Call Notice dated 18.03.2016, also recommends that it should be ensured that henceforth the work experience of "completed work" be taken into account while assessing the experience of "similar nature of works". This would clearly go to show that the work experience, which was required by the Tender Call Notice dated 18.03.2016, was with regard to "executed work" and not "completed work". It is clear from the wordings of the Tender Call Notice that execution of work includes work experience of executed ongoing works, as would be clear from sub-clause (a) of Clause 121.3. If "completed work" is now substituted for "executed work", it would clearly amount to changing the rules of the game, after the game is already in 22 progress or over. It can be presumed that the rules of the game have been changed in this case to suit a particular player. The Tender Evaluation Committee in its meeting held on 20.06.2016, had examined the technical qualification of the bidders and found the petitioner to be qualified and thereafter the financial bid had also been opened, in which the bid of the petitioner was the lowest. The same had also been accepted by the Tendering Authority, which had, on 02.08.2016, recommended to the State Government for acceptance of the bid of the petitioner. Holding of the further enquiry and then cancelling the Tender Call Notice, without there being any valid reason, cannot thus be justified in law.
14. In the aforesaid facts of the case, we are of the clear opinion that the requirement in the Tender Call Notice dated 18.3.2016 was clearly with regard to "execution" of work, which included the work in progress, for which the petitioner was duly qualified, 23 and that the said condition could not have been changed subsequently to provide that it should be read as "completed work". Further, the requirement of having "executed" or "completed" the "bridge work" was nowhere a part of the tender condition, and by subsequently changing such condition from "Civil Engineering Construction Works" to "bridge work"
would clearly amount to changing the rules of the game after the play has begun or is over. The contention of learned counsel for the petitioner, that after the financial bid has been opened, the petitioner has been put to disadvantage, has force, as in the subsequent Tender Call Notice the bidders would know the price bid of the petitioner. The financial bid of the petitioner could have been opened only when he was technically qualified. The Tender Evaluation Committee in its meeting held on 20.06.2016 had found the petitioner to be technically qualified. Thereafter, it is not understood as to how the same could have been reviewed (that too without notice to the petitioner, whose interest would 24 be adversely affected) and the petitioner held to be technically disqualified, by wrongly interpreting the conditions of the Tender Call Notice, which interpretation is not acceptable by this Court.
15. Much reliance has been placed by Mr. B.P. Pradhan, learned Addl. Govt. Advocate on Chandra Sekhar Swain (supra). It is urged that the ratio decided in the said case is directly applicable to the present context and, as such, when a mistake has been detected by the authority, the same has been rectified. Thereby, no illegality or irregularity has been committed by the authority concerned.
16. The Constitution Bench of the apex Court in State of Orissa v. Sudhansu Sekhar Misra and others, AIR 1968 SC 647 held as follows:-
"A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. It is not a profitable task to extract a sentence here and there from a judgment and to build upon it." 25
The above being the law laid down by the apex Court, as it appears, in the case of Chandra Sekhar Swain (supra), pursuant to the tender call notice dated 30.04.2016, the petitioner therein furnished the affidavit of authentication and agreement for hiring machineries with one Subala Behera, which was valid for a period of twelve months commencing from 04.07.2016. The said agreement dated 04.07.2016 was extended up to 02.11.2018 vide agreement dated 29.10.2016 covering the period of 03.06.2017 to 02.11.2018. While the consideration pursuant to such tender notice was on, the same was cancelled on 30.11.2016, without assigning any reason, and a notice was issued on the very same day, i.e., 30.11.2016 inviting fresh tenders. The cancellation of tender call notice dated 30.04.2016 and issuance of fresh tender call notice dated 30.11.2016 were subject-matter of challenge in the said writ application. As pursuant to tender call notice dated 30.04.2016 the tender committee, having erroneously considered the 26 documents, recommended the case of the petitioner therein for approval and the competent authority, instead of approving the same, directed for reconsideration, which was well within its jurisdiction, the said writ application was dismissed by this Court. Furthermore, the order of cancellation passed on 30.11.2016 although was cryptic one, the reasons for such cancellation had been indicated in the official website of the authority and, therefore, such order of cancellation was not construed to be a cryptic one. This fact was dealt in paragraphs-21 and 22 of the judgment itself. Therefore, the factual matrix of the case of Chandra Sekhar Swain (supra) is totally different from that of the present one, and that case, having been decided on its own merits, has no application to the present context.
17. Mr. S. Dwibedy, learned counsel for opposite party no.4 has relied upon the judgment in State of Jharkhand (supra), wherein the apex Court has taken 27 into consideration the pre-bid meeting of ten tenderers participated in the bid and after conclusion of pre-bid meeting as a result of stringent conditions prescribed in Clauses 4.5 (A) (a) and 4.5 (A) (c), from clause of SBD (Standard Bidding Documents) only three tenderers could participate in the bidding process and submit their bid. Upon scrutiny two were found non- responsive. In order to make the tender more competitive, Tender Committee in its collective wisdom has taken the decision to cancel and re-invite tenders in the light of SBD norms. Same was reiterated in a subsequent meeting of Committee. Therefore, the High Court was not justified to sit in judgment over the decision of Tender Committee and substitute its opinion on the cancellation of tender. Consequentially, the apex Court held that it was not proper for High Court to presume that there was adequate competition. At the same time, the apex Court held that while exercising judicial review in the matter of government contracts, the primary concern of the Court is to see 28 whether there is any infirmity in the decision making process or whether it is vitiated by mala fide, unreasonableness or arbitrariness.
The ratio decided in the above case may not have any application to the case of opposite party no.4, rather it has got some application to the case of the petitioner. But learned counsel for opposite party no.4 relied upon paragraph-12 of the aforesaid judgment wherein reference has been made to some of the judgments of the apex Court and it has been decided that so long the bid has not been accepted, the highest bidder acquires no vested right to have the auction concluded in his favour. More so, it is contended that the State was well within its right to reject the bid without assigning any reason thereof. There is no dispute on the proposition which has been referred to in paragraphs-12 and 13 of the judgment itself, but that itself has to be taken into consideration while exercising the power under judicial review to the extent 29 that whether there is any infirmity in the decision making process or whether it is vitiated by mala fide, unreasonableness or arbitrariness. Applying the same to the present context, there is no dispute that there is infirmity in the decision making process, as a consequence thereof, it is vitiated by arbitrary exercise of power by the authority concerned.
18. In Dinesh Engineering Corporation (supra), the apex Court in paragraph-15 of the judgment categorically held as follows:
"Coming to the second question involved in these appeals, namely, the rejection of the tender of the writ petitioner, it was argued on behalf of the appellants that the Railways under Clause 16 of the Guidelines was entitled to reject any tender offer without assigning any reasons and it also has the power to accept or not to accept the lowest offer. We do not dispute this power provided the same is exercised within the realm of the object for which this clause is incorporated. This does not give an arbitrary power to the Railways to reject the bid offered by a party merely because it has that power. This is a power which can be exercised on the existence of certain conditions which in the opinion of the Railways are not in the interest of the Railways to accept the offer. No such ground has been taken when the writ petitioner's tender was rejected. Therefore, we agree with the High Court that it is not open to the Railways to rely upon this clause in the Guidelines to reject any of every offer that may be made by the writ petitioner while responding to a tender that may be called for supply of spare parts by the Railways. Mr. Iyer, learned senior counsel appearing for the EDC, drew our attention to a judgment of this Court in Sterling Computers Ltd. v. M/s. M. and N. Publication Ltd., (1993) 1 SCC 445 which has held : 30
"Under some special circumstances a discretion has to be conceded to the authorities who have to enter into contract giving them liberty to assess the overall situation for purpose of taking a decision as to whom the contract be awarded and at what terms. If the decisions have been taken in bona fide manner although not strictly following the norms laid down by the Courts, such decisions are upheld on the principle laid down by Justice Holmes, that Courts while judging the constitutional validity of executive decisions must grant certain measure of freedom of "play in the joints" to the executive."
19. In M/s. Shree Ganesh Construction (supra), this Court has already held that the cancellation of tender having been made by a cryptic order, the subsequent explanation given by way of filing counter affidavit is not permissible in law. As no reason was assigned in the impugned order, the same was quashed. In view of the law laid down in Mohinder Singh Gill and Commissioner of Police, Bombay (supra), this question no more remains res integra. Since by a cryptic order the cancellation of tender has been done, even if the reason has been explained by filing subsequent affidavit which is not permissible in law, the same cannot sustain in the eye of law. 31
20. In M/s. D.K. Engineering & Construction (supra), this Court has taken into consideration the application of principle of judicial review to exercise of contractual powers of government bodies in order to prevent arbitrariness or favoritism. Right to refuse the lowest and any other tenderer is always available to the government, but the principles laid down under Article 14 of the Constitution of India have to be kept in view, while refusing to accept the tender. In paragraph-10 of the said judgment, this Court held as follows:-
"The freedom of Government/authority to enter into contracts is not uncanalised or unrestricted, it is subject to the golden Rule under Article 14 of the Constitution of India. The Government has to act impartially and in accordance with the terms and conditions of the tender. In accepting the contract, it is not always necessary to accept the highest offer. The choice of the person to whom the contract is granted has to be dictated by public interest and must not be unreasoned or unprincipled. The choice cannot be arbitrary or fanciful."
21. In view of the above factual and legal analysis and taking into consideration the application of principle of judicial review to exercise of contractual powers, since the cancellation of tender has been made by a cryptic order, this Court has jurisdiction to 32 interfere with the same. Therefore, we are of the clear opinion that this petition deserves to be allowed. Accordingly, the writ petition stands allowed and the order dated 28.10.2016 passed by opposite party no.2- Chief Engineer, whereby the Tender Call Notice dated 18.03.2016 has been cancelled, is quashed. Further, the subsequent tender call notice, issued on the same date is also quashed. The petitioner shall be entitled to all consequential benefits. There shall be no order as to costs.
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( VINEET SARAN ) CHIEF JUSTICE .................................. ( DR. B.R. SARANGI ) JUDGE The High Court of Orissa, Cuttack Dated the 17th August, 2017/PCP/SKJ/GDS/AKJ/ARS