Orissa High Court
Sampad Samal vs State Of Odisha And Others on 2 January, 2017
Author: Vineet Saran
Bench: Vineet Saran
HIGH COURT OF ORISSA : CUTTACK
W.P.(C) No.3231 of 2016
In the matter of an application under Articles 226 and 227 of
the Constitution of India.
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Sampad Samal ........ Petitioner
AFR
-Versus-
State of Odisha and others ......... Opp. Parties
For petitioner : M/s. Anjan Kumar Biswal,
P.K. Rout and R.K.Muduli,
Advocates
For opp. parties : Mr. B. Bhuyan,
Addl. Government Advocate
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PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR. VINEET SARAN
AND
THE HONOURABLE DR. JUSTICE B.R. SARANGI
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Decided on : 02.01.2017
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VINEET SARAN, C.J. A tender call notice was issued by opposite
party no.3, Integrated Tribal Development Agency (ITDA),
Kaptipada, Udala on 22.08.2015, which was in respect of 21
works. The dispute in the present petition relates to the
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works at serial no.1 and 2. The petitioner, along with several
other persons, had filed their tenders for serial no. 1 and 2.
As per the tender conditions, the tenders were opened on
22.09.2015and the petitioner was found to be the lowest bidder in respect of both the works, i.e., at serial no.1 and 2, which was after having been given the benefit of the resolution of the State Government dated 11.10.1977, as the petitioner belongs to scheduled caste/schedule tribe community.
2. When the opposite parties did not finalize the tender in his favour, on 21.11.2015, the petitioner filed a representation before opposite party no.3. Since the representation was not decided, the petitioner filed W.P.(C) No. 21633 of 2015, which was disposed of on 15.12.2015 with the direction to opposite party no.3, the Project Administrator, ITDA to dispose of the representation within a period of two months. Then, instead of first deciding the representation of the petitioner, opposite party no.3 vide its order dated 03.02.2016 cancelled the entire tender call notice dated 22.08.2015. Then, a day thereafter, i.e., on 04.02.2016 the representation of the petitioner was decided and he was 3 informed that the entire tender call notice has itself been cancelled. Challenging the order dated 04.02.2016, as well as cancellation of the tender call notice dated 22.08.2015 vide order dated 03.02.2016, this writ petition has been filed.
3. We have heard Mr. A. K. Biswal, learned counsel for the petitioner, as well as Mr. B. Bhuyan, learned Addl. Government Advocate appearing for the opposite parties, and perused the records. Pleadings having been exchanged and with the consent of learned counsel for the parties, this writ petition is being disposed of at this stage.
4. The submission of Mr. A.K. Biswal, learned counsel for the petitioner is that there is no dispute about the fact that the tenders of the petitioner with regard to work at serial no.1 and 2 were the lowest and, since the petitioner was otherwise fully qualified, he ought to have been awarded the work. It is contended that once the bids of the participants had been opened, the rates quoted by the petitioner have been disclosed, and in case a fresh tender for the same work is called then the petitioner would be prejudiced. It is also submitted that the representation of the 4 petitioner ought to have been first decided by opposite party no.3 before the order dated 03.02.2016 was passed, cancelling the entire tender call notice. It is further contended that the reason assigned for rejecting the representation of the petitioner is frivolous and the impugned orders are liable to be quashed.
5. Per contra, learned Addl. Government Advocate has submitted that the primary reason for cancelling the tender call notice was that 90 days period had expired since the opening of the tenders, and invoking condition no.17 of the tender document, the tender call notice has been cancelled by resorting to clause-10 of the term and condition of the tender papers, in terms of which "the authority reserves the right to reject any or all tenders without assigning any reason thereof." It is also submitted that the opposite parties did not take a final decision relating to the finalization of the tenders, as one Kaptipada Contractors Association had filed a representation on 08.09.2015 praying for acceptance of the tender documents by hand instead of through registered post/speed post, as provided for in the tender notice. The said representation 5 having not been considered, the Kaptipada Contractors Association filed W.P.(C) No. 16617 of 2015, which is pending. However, admittedly, no interim order has been passed in the said writ petition.
6. From the submissions advanced by learned counsel for the parties, it appears that primary reason for cancelling the tender call notice dated 22.08.2015 was that 90 days period had expired and that further time had not been extended. Clause 17 of the detailed tender call notice provides :
"All tenders received will remain valid for a period of 90 days from the last date prescribed for receipt of tenders and validity of tenders can also be extended if agreed by the tenderers and the Department."
The tenders were admittedly opened on 22.09.2015. After the petitioner was found to be the lowest tenderer for the works at serial no.1 and 2 and his tender was not accepted even though found to be valid, within the period of 90 days, he made a representation to opposite party no.3 for accepting his tender. When the same was not decided, then he filed the writ petition (which was also within 90 days of the opening of the tenders). By order dated 15.12.2015 passed in W.P.(C) 6 No.21633 of 2015 this Court directed that the representation of the petitioner be decided. Now instead of deciding the case of the petitioner, who had been pursuing the matter diligently and had even filed the representation within a period of 90 days and also filed a writ petition earlier, opposite party no.3 went on to first cancel the tender call notice on 03.02.2016 and then proceeded to decide the representation of the petitioner on 04.02.2016, giving such reason which was not existent on the date when the representation was filed, as the representation was filed within 90 days of the opening of the tender or even filing of the tender.
7. A tenderer cannot be allowed to suffer because of the fault and inaction of the opposite parties. In the present case, it is clear that the opposite parties sat over the matter and allowed 90 days to expire, without there being any fault of the tenderer and then for cancelation of the tender call notice, gave the reason that 90 days period has expired. If this is permitted, then in every case, after the opening of tender, where the lowest bidder does not suit the opposite party, they can always sleep over the matter without taking any decision and resorting to clause 17 of the detailed 7 tender call notice, cancel the notice itself, which in our opinion, cannot be justified. Had there been any fault on the part of the petitioner, the case would have been different. In the present case, the opposite parties have not stated anywhere that either the conditions stipulated were not fulfilled by the petitioner or that his tender was not the lowest. As such, not awarding the work to the petitioner in terms of the tender call notice, cannot be justified in law.
8. The other ground which has been taken for rejecting the representation of the petitioner, is pendency of the writ petition filed by the Kaptipada Contractors Association, in which admittedly no interim order has been passed. The tender documents clearly stipulate filing of the tenders by speed post/registered post, which the petitioner and several other bidders had complied. Merely because there was a challenge in a writ petition and prayer was made that tenders should be permitted to be received by hand, in which no positive order has been passed by the Court and the last date for filing of the tender had already expired, cancelling the tender, merely because of pendency of such frivolous petition cannot be justified in law.
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9. Further, resorting to clause 10 of the terms and condition of tender papers, whereby right to reject is reserved by the authroity concerned without assigning any reason, can be justified only when there is proper and adequate ground for passing an order of cancellation and not in an arbitrary manner, as has been done in the present case.
10. In Madan Lal v. Changdeo Sugar Mills, AIR 1962 SC 1543, the apex Court held that the elementary rule is that words used in a section must be given their plain grammatical meaning.
11. In Jugal Kishore v. Raw Cotton Co Ltd., AIR 1955 SC 376, the apex Court held as follows:
"That the cardinal rule of construction of statutes is to read the statute literally, that is by giving to the words used by the Legislature their ordinary, natural and grammatical meaning. If, however, such a reading leads to absurdity and the words are susceptible of another meaning, the court may adopt the same. But if no such alternative construction is possible, the court must adopt the ordinary rule of literal interpretation."
12. In Amar Singhji v. State of Rajasthan, AIR 1955 SC 504, the Supreme Court again observed as follows: 9
"Recourse to rules of construction would be necessary only when a statute is capable of two interpretations. Where the language is clear and the meaning plain, effect must be given to it."
13. In view of the law laid down by the apex Court, as discussed above, the first and primary rule of construction is that the intention of the legislature must be found in the words used by the legislature itself. If the words used are capable of one construction only, then it would not be open to the courts to adopt any other hypothetical construction on the ground that such hypothetical construction is more consistent with the alleged object and policy of the Act.
14. Applying the aforesaid well settled principles to the present context and taking into consideration the conditions stipulated in clause-17 of the tender document read with clause-10 of the terms and conditions of the tender paper and giving them their plain meaning, as the authority concerned has passed the impugned order of cancellation, without any proper and adequate ground, rather, as it is clear, in an arbitrary manner because of pendency of frivolous petition, the same cannot be sustained in the eye of law.
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15. In view of the aforesaid, this writ petition deserves to be allowed and is accordingly allowed. The orders dated 04.02.2016 and 03.02.2016 are quashed only to the extent with regard to work at serial no.1 and 2 of the tender call notice dated 22.08.2015. The petitioner would thus be entitled to be awarded the contract with regard to the works at serial no.1 and 2 of the said tender call notice, in accordance with the terms of the tender call notice, which should be complied with within six weeks from today. No order as to costs.
16. A copy of this judgment be given to learned Addl. Government Advocate for the State free of cost for necessary compliance. Urgent certified copy of this judgment be given to the petitioner on payment of usual charges.
Sd/-
( VINEET SARAN ) CHIEF JUSTICE Sd/-
(DR. B.R. SARANGI ) JUDGE The High Court of Orissa, Cuttack Dated the 02nd January, 2017/GDS/Ajaya True copy Secretary 11