Orissa High Court
Prafulla Kumar Sahoo vs State Of Odisha & Others .... ... on 1 July, 2021
Bench: S.K.Mishra, B.P.Routray
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.18764 of 2021
Prafulla Kumar Sahoo .... Petitioner
Mr. Milan Kanungo, Sr. Advocate
-versus-
State of Odisha & others .... Opp.Parties
Mr. Tarun Patnaik, A.S.C.
Mr.Samir Mishra, Advocate
CORAM:
JUSTICE S.K.MISHRA
JUSTICE B.P.ROUTRAY
ORDER
Order No. 01.07.2021 02. 1. This matter is taken up by video conferencing mode.
2. Heard Mr.Milan Kanungo, learned senior counsel for the petitioner, Mr.Samir Mishra, learned counsel for Odisha State Civil Supplies Corporation and Mr.Tarun Patnaik, learned Additional Standing Counsel for the State.
3. In this writ application, the petitioner, a Transport Contractor has challenged the legality of Clause 1(j) (d) of the Part-I-technical bid of the tender document of Annexure-1.
4. Annexue-1 is the tender document issued by the Office of the District Manager, Odisha State Civil Supplies Corporation Limited, Kendrapara for inviting tender from the Transport Contractors. Clause-5 of the tender document provides that "no person shall be appointed as Level-II Page 1 of 4 // 2 // Transport Contractor under this tender process, if any of his/her or the Director or proprietor or partner family members has a commercial interest in a business relating to Handling Contractor/Level-II Transport Contractor/MDM Transport Contractor/SNP transport Contractor/PEG Go-down Lessor and/or custom milling of rice for OSCSC Ltd. for the district and its neighbouring district with common boundary for which s/he intends to apply under this tender".
5. The term "family" has been defined in Part-I of the technical bid appearing at page 34 of the brief i.e., parents, husband/wife, son/daughters (including adopted children and their spouse) and full blood siblings (brothers and sisters from common parents) and their spouse.
6. In this case, it is the case of the petitioner that his brother has a commercial interest in the business relating to the affairs of the OSCSC, but the learned senior counsel, Mr.Kanungo submits that there is a partition between them and they are residing in two different villages. The petitioner's claim that the said clause is violative of Articles 14, 19(1)(g) and 21 of the Constitution of India. It is also contended that the said condition is only with the intention to restrict genuine transporters from participating in the tender process and also with an intention to narrowing the participants in the aforesaid public tender. Hence, the petitioner claims that the clause and action of the opposite parties are per se unfair, illegal, arbitrary, discriminatory and abridges the legitimate expectation, in addition to violative of the provisions of the Constitution.
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7. Mr.Sameer Mishra, learned counsel appearing for the Corporation, opposite party Nos.2 & 3 submits that similar matter was before this Court in W.P.(C) No.6604 of 2020 and W.P.(C) No.12584 of 2020 and a Division Bench in which one of us (Mr. S.K.Mishra,J) is a party. As per the judgment dated 20.01.2021 this Court have upheld such Clause and dismissed the application made by the petitioner. Mr.Tarun Patnaik, learned Additional Standing Counsel also supports the argument advanced by Mr.Mishra, learned counsel appearing for the Corporation.
8. In the aforesaid judgment (Nilamadhab Joshi-vrs.-State of Odisha and others) decided on 20.01.2021 similar matter arose before this Court and after considering the submissions made by the learned counsel appearing therein the Division Bench presided by Chief Justice of the Court has held as follows in paragraph-17., "Having considered the submission of learned counsel for the parties, the Court is not satisfied that sufficient grounds exist for interference by the Court. The Court is unable to agree that the definition of 'family' is too broad and wide and was inserted to somehow deliberately disqualify the persons like the petitioner. There is a need to ensure a level playing field and a fair and equal opportunity where competitive bidding is to take place. By debarring the family members, which could well include the siblings of the person bidding, nothing arbitrary or illegal has been sought to be introduced into the process done by the opposite parties. The measure has a Page 3 of 4 // 4 // reasonable nexus to the object of ensuring a fair and level playing field for bidders. It eliminates one possible source of bias that might vitiate the process. Indeed it was important to break the 'cartel' and domination of certain family groups to form a network and capture all the available contracts. The explanation of the definition of 'family' therefore, appears reasonable to the Court and cannot be said to be hit by Article 14 of the Constitution. Even the stipulation regarding EMD does not appear to be unreasonable or contrary to any settled law.
In that view of the matter, we find no merit in the writ application as there is nothing left to be decided in this case.
The writ petition is accordingly dismissed.
9. As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize the soft copy/downloaded copy of this order available in the High Court's website or print out thereof at par with certified copies, subject to attestation by Mr.Milan Kanungo, learned counsel along with seal, in the manner prescribed, vide Court's Notice No.4587, dated 25th March, 2020 as modified by Court's Notice No.4798, dated 15th April, 2021.
(S.K.Mishra) Judge RKS ( B.P.Routray ) Judge Page 4 of 4