Orissa High Court
Ms.Shree Ganesh Construction vs State Of Orissa And Others on 18 May, 2016
Equivalent citations: AIR 2016 (NOC) 720 (ORI.)
Author: B.R. Sarangi
Bench: Vineet Saran, B.R. Sarangi
ORISSA HIGH COURT: CUTTACK
W.P.(C) No. 2656 of 2016
In the matter of an application under Articles 226 & 227 of the
Constitution of India.
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M/s.Shree Ganesh Construction ........ Petitioner
- versus -
State of Orissa and others ........ Opp. Parties
For Petitioner : M/s. Gyaneswar Satpathy &
B.P.Satpathy
For Opp.Parties: Mr.P.K.Muduli, Addl.Govt.Advocate
Mr.N.Behuria, K.Dhal, & P.K.Rout
(Intervenor)
PRESENT:
THE HON'BLE THE CHIEF JUSTICE MR. VINEET SARAN
AND
THE HON'BLE DR. JUSTICE B.R.SARANGI
Date of hearing : 04.05.2016| Date of judgment: 18.05.2016
Dr. B.R.Sarangi, J.M/s.Shree Ganesh Construction, which is a partnership firm having Special Class Contracter licence under the Government of Odisha, has filed this petition seeking to quash the order dated 5.2.2016 cancelling the tender for work "Improvement to Pejagala Drainage System & its link Drains in Basta Block of Balasore District under D.I.P. (Phase-1)" on the ground of non- achieving the minimum qualifying criteria and consequential 2 invitation for bids issued by the Superintending Engineer, Drainage Circle, Balasore in e-Procurement Notice No.SEDCBLS-07/2015-16 and Bid Identification No.SEDCBLS/ DDBLS-15/2015-16 in Annexure-5 dated 8.2.2016.
2. The Superintending Engineer, Drainage Circle, Balasore in the Department of Water Resources vide Annexure-1 invited bids from the intending candidates throughout the State of Odisha as well as out-side the State of Odisha to execute seven nos. of works. As per Clause-3 of the tender call notice, the authorities have specified the mode of bid/ period of availability of bid on-line, date and time of bidding on-line, last date of seeking clarification, date of opening of bid papers etc. In response to the said bid, the petitioner along with three others submitted their cover-I technical bid with cover-II financial bid before the authority concerned within the time specified along with required documents for qualification, information and eligibility criteria, plans, specification with R.C., V.A.T. clearance, PAN card, bid security, no-relation certificate, credentials and affidavit about the authenticity of documents. The bid documents acknowledged by the authorities, the technical bid was opened in presence of the intending bidders in which the petitioner was found to be qualified in all respect, whereas technical bid so far as other bidders are concerned, were rejected. As per the technical bid evaluation summary (at page 16 of the brief), it has been specifically 3 mentioned that the petitioner has „qualified‟ in the technical bid and subsequently on 15.1.2016 financial bid of the petitioner was opened in presence of opposite party no.3 and other officers and it was found that the quoted price of the petitioner is less @ 12.07% of the total bid amount, consequently it is the acceptable amount as per clause 14 of the tender call notice. Accordingly, at page 18 of the brief, under the heading "financial bid list", it has been specifically mentioned „admitted‟. The petitioner having qualified both in the technical and financial bid, when it was awaiting for receiving the work order to execute the same, all on a sudden he gathered information that on the ground of non-achieving the minimum qualifying criteria, the tender for the work "Improvement to Pejagala Drainage System & its link Drains in Basta Block of Balasore District under D.I.P. (Phase-1)" has been cancelled and consequently, fresh invitation for the bid has been issued in Annexure-5. Hence, this petition.
3. Mr.G.Satpathy, learned counsel for the petitioner urged that the order impugned in Annexure-4 cannot sustain in the eye of law as no opportunity of hearing has been given to the petitioner before such cancellation. The petitioner having been found suitable both in the technical bid and financial bid, cancellation of the tender pursuant to the impugned letter in Annexure-4 without complying due provisions of law cannot sustain and accordingly, he seeks for quashing of the same. 4
4. Mr.P.K.Muduli, learned Addl.Govt. Advocate for the State referring to the counter affidavit strenuously urged that the petitioner was found responsive as per technical evaluation, which was uploaded on 14.1.2016 and financial bid was opened and the summary sheet was uploaded on 15.1.2016 and on detailed verification of the bid documents of the petitioner, it was observed that the work credential of Sri Saroj Kumar Sharma, the so-called 4th partner of the firm, was not in order in view of their affidavit dated 24.09.2011 along with the clarification of Law Department dated 11.3.2002. Therefore, the bid of the petitioner could not be considered as responsive and hence, the tender was cancelled on 05.2.2016, thereby the authorities have not committed any illegalities or irregularities in cancelling the tender in Annexure-4, which does not warrant interference by this Court at this stage. To substantiate his contention, he has relied upon the judgment in Air India Ltd. v. Cochin International Airport Ltd. and others, (2000) 2 SCC 17 and Maa Binda Express Carrier and another V. North-East Frontier Railway And Others, (2014) 3 SCC 760.
5. Pleadings having been exchanged by the parties, the matter was heard with the consent of the learned counsel for the parties.
6. Having heard the learned counsel for the parties and after going through the records, it appears that the facts narrated above are not in dispute. On perusal of the impugned 5 order in Annexure-4 dated 5.2.2016, it appears that by a cryptic order without assigning any reasons, the tender has been cancelled and more so, it appears that the said cancellation has not been communicated to the petitioner. It is admitted fact that the petitioner has qualified in both the technical and financial bid pursuant to the invitation bid in Annexure-1. But in order to justify the action of the authorities, the reasons have been assigned in paragraph 5 of the counter affidavit, which reads as follows :
"Studied the technical bid papers submitted by M/s.Shree Ganesh Construction and observed the followings:
The firm, M/s.Shree Ganesh Construction, in his technical bid for the work has enclosed a copy of the clarification of Law Department, Government of Odisha, in the matter of joint venture/ partnership firm wherein it is clarified that "where the constituents contribute to the assets and share the risks of the company/ firm can only mean the experience of the constituents of that company / firm (p.27 of Tech.bid) In the instance case, the partner of the firm Sri Saroj Kumar Sharma, stands separate from sharing such responsibility and risks as claimed from the para 11, 12 & 13 of the partnership deed (page-64). Hence, his experience and credentials cannot be taken in favour of M/s.Shree Ganesh Construction (clarification enclosed as P-27 of Tech.bid) M/s.Shree Ganesh Construction has not submitted any certificate on credentials in its name and hence it is presumed that it has no required credentials of its own.
Hence, the firm is technically not qualified for the work. As all the bidders are disqualified technically for the work the tender is hereby cancelled."
7. In the counter affidavit filed, the reasons have been assigned, which are not available in the impugned order of cancellation filed before this Court in Annexure-4 dated 5.2.2016. 6 More so, while cancelling the tender, the principles of natural justice have not been complied with. It is well settled principle of law laid down by the Apex Court in Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi and others, AIR 1978 SC 851 that :
"When a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be 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."
8. 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. Orders are not like old wine becoming better as they grow older."
Similar view has also been taken in Bhikhubhai Vithlabhai Patel and others v. State of Gujarat and another, (2008)4 SCC 144.
9. In view of the law laid down by the Apex Court mentioned supra and looking at the impugned order in Annexure- 4, a conclusion can be drawn that by a cryptic order the 7 cancellation of tender has been made, which has been explained by filing subsequent affidavit, the same is not permissible under law.
10. Relying on Air India Ltd. (supra), learned counsel for the State has urged that in exercise of judicial review, the Court cannot interfere with the decision, but it can interfere with the decision-making process on grounds of mala fides, unreasonableness or arbitrariness and Court should exercise its discretionary power with great caution and only in furtherance of overwhelming public interest.
11. In Maa Binda Express Carrier(supra), it is held that submission of a bid/ tender in response to a notice inviting tenders is only an offer which State or its agencies are under no obligation to accept and bidders participating in the tender process cannot insist that their bids/ tenders should be accepted simply because a bid is the highest or lowest.
12. None of the judgments referred to by the learned Addl. Govt. Advocate for the State is applicable to the present context.
13. In view of the reasons assigned in the foregoing paragraphs, it appears that since no reasons have been assigned in the order impugned in Annexure-4 and subsequently by filing affidavit, the opposite parties have tried to justify their action by 8 giving explanation, this Court is inclined to interfere with the same. Thus, the order impugned in Annexure-4 dated 5.2.2016 and the consequential invitation of bid in Annexure-5 also cannot sustain and accordingly, the same are hereby quashed.
14. The writ petition is accordingly allowed. No cost.
Sd/-
(Dr. B.R. Sarangi, J.)
Vineet Saran, C. J. I agree.
Sd/-
(Vineet Saran, C.J.)
Orissa High Court, Cuttack
The 18th May, 2016/PKSahoo
True copy
Secretary