Orissa High Court
Afr vs State Of Odisha And Another on 31 August, 2023
ORISSA HIGH COURT: CUTTACK
W.P.(C) NO. 6842 OF 2023
In the matter of an application under Articles 226 and 227
of the Constitution of India.
---------------
AFR
M/s Radhakrushna Publications, ..... Petitioner
Bhubaneswar
-Versus-
State of Odisha and another ..... Opp. Parties
For Petitioner : Mr. S.K. Sarangi, Sr. Advocate along
with M/s. Sudeep Kumar Sarangi
and A.K. Nayak, Advocates.
For Opp. Parties : Mr. T. Pattnaik,
Addl. Standing Counsel
P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R.SARANGI
AND
THE HON'BLE MR. JUSTICE MURAHARI SRI RAMAN
Date of hearing: 25.08.2023 :: Date of judgment: 31.08.2023
DR. B.R. SARANGI, J. M/s Radhakrushna Publications,
represented through its proprietress Smt. Suchismita
Dash, has filed this writ petition seeking to quash the
proceedings of the State Level Purchase Committee meeting
held on 05.12.2022 under the chairmanship of
Commissioner-cum-Secretary for finalization of rate of
Printing and Binding of Nationalized Text Books and Allied
Books for the academic session 2023-24 and approval
made thereon vide order dated 19.12.2022 under
Annexure-8, by which the petitioner has been debarred by
rejecting its technical bid on the ground that the
documents concerning to the electricity supply has not
been uploaded in the official website during the process of
tender, as well as the consequential order dated
20.02.2023 under Annexure-11, by which representation of
the petitioner has been rejected on the ground that the
petitioner had not uploaded any electric bill either in the
name of its firm or in the name of the firm from which it is
borrowing the electric power on rent.
2. The factual matrix of the case, in brief, is that
office of the Director, Text Book Production and Marketing,
Kharavel Nagar, Bhubaneswar issued a tender call notice
bearing no.6484/TBPM dated 13.10.2022 for Printing and
Binding of Nationalized Text Books for the academic
session 2023-24. The last date of submission of bid was
fixed to 09.11.2022, whereas the date of opening of
technical bid was fixed to 10.11.2022. In response to the
aforesaid tender call notice, the petitioner submitted its bid
on 07.11.2022, which was duly acknowledged by the
tender committee, as would be evident from the e-mail of
the said date and, as such, the petitioner uploaded all the
documents as per clause-11 of the tender documents
containing important instructions to the tenderers for
Printing and Binding of Nationalized Text Books.
2.1 The petitioner, for its printing purpose, is
utilizing a portion of the IDCO Plot No.H-18, Mancheswar
Industrial Estate, Bhubaneswar by executing rent
agreement with the owner Ambika Prasad Das (husband of
the proprietress of the petitioner), Managing Director of
M/s Radhakrushna Publications Pvt. Ltd. on payment of
rent. As such, the utilization part of plot has been approved
by the IDCO, as per letter dated 05.04.2022. In accordance
with the aforesaid agreement, the petitioner is using the
electricity connection of M/s Radhakrushna Publications
Pvt. Ltd. and paying the electricity charges as per the bills
raised by it and the said bills are inclusive of GST.
2.2 As per clause-11 of the tender documents under
Annexure-1, "the unit should have three phase electricity
connection bill or any other supporting documents of
electricity connection". Thereby, the petitioner, being a
tenant under M/s Radhakrushna Publications Pvt. Ltd., is
utilizing the industrial power availed by the unit, as would
be evident from the bills raised by the TPCODL where 11
KV connection has been given through its own transformer.
In the earlier year, the petitioner was awarded with the
contract of printing books for the opposite party no.2 on
the basis of the said credentials. The technical bid was
opened on 10.11.2022 on the schedule date and time. But,
on 24.11.2022, the petitioner received a message in the
registered mobile phone regarding admission of the bid by
the duly constituted committee.
2.3 It is worthwhile to mention here that out of 149
bidders, 146 firms were found to have qualified and three
firms were disqualified in the technical bid. The firms
disqualified are (i) Radhakrushan Publications, the
petitioner herein; (ii) M/s Amarjyoti Printers; and (iii) Shree
Lingaraj Process Offset. The reasons assigned regarding
rejection of the technical bid of the petitioner was "the firm
has not uploaded the three phase electric bill document in
the e-tender and also could not produce the said document
at the time of physical verification, which violates clause-2 of
the terms and conditions of the tender notice". Similarly,
reasons assigned for rejection of M/s Amarjyoti Printers is
"A complaint was received that the firm does not have
electricity connection. The technical committee on physical
inspection found that the firm does not have electricity
connection, which violates clause-2 of the terms and
conditions of the tender call notice."
2.4 The petitioner, having come to know about its
disqualification in the technical bid, made representation
on 28.11.2022 along with three phase electricity bill and
also explained that during the inspection she could not
provide the relevant documents as she had gone to attend
funeral ceremony of her sister-in-law at Kendrapara. The
petitioner also produced the relevant documents as
Enclosure-1 and 2, which are copies of the electricity bill
invoices of M/s Radhakrishna Publications and TPCODL
bills. That apart, the petitioner also produced all other
relevant documents and her credentials for the printing
order. The reasons for non-consideration of the technical
bid of the petitioner is evident from the approval made by
the Addl. Secretary to Govt. on 19.12.2022 enclosing the
copy of the proceeding dated 05.12.2022 of the purchase
committee. It was also pointed out by the petitioner that
M/s Amarjyoti Printers, Bhubaneswar, which was
disqualified along with the petitioner, had made
representation and on the basis of which its case was
considered subsequently and its tender was accepted. So
also one Divine Printers, which has taken on rent the
premises, in which printing press is working, from one
Prasanta Kumar Moharana of Bidyadharpur, Nayabazar,
PS- Chauliaganj, Cuttack, has qualified though neither the
place nor the electricity connection stands in its name and,
as such, the electricity connection stands in the name of
M/s Sidhartha Drinks Pvt. Ltd., the landlord in that case.
Thereby, the petitioner contended that non-consideration of
its case, in spite of all the documents produced before the
authority, is arbitrary, unreasonable and contrary to the
provisions of law and, as such, consideration of similarly
situated bidders, by excluding the petitioner, amounts to
discrimination.
2.5 Aggrieved by the action of the authority, with
regard to non-consideration of its case, the petitioner had
earlier approached this Court by filing W.P.(C) No.36233 of
2022, which was disposed of, vide order dated 03.01.2023,
with a direction to the opposite parties to consider her
representation vide Annexure-7 series to the said writ
petition. In compliance of the said order, ultimately the
representation of the petitioner was rejected by the
authority, vide order dated 20.02.2023 under Annexure-11,
by holding that "on verification of the document, it is
ascertained that the petitioner had not uploaded any electric
bill neither in the name of the firm nor in the name of the firm
the petitioner borrowing the electric power on rent." Hence,
this writ petition.
3. Mr. Santanu Kumar Sarangi, learned Senior
Counsel appearing along with Mr. Sudeep Kumar Sarangi,
learned counsel for the petitioner contended that non-
consideration of the case of the petitioner amounts to
arbitrary and unreasonable exercise of power. More so, the
action taken by the authority is discriminatory, as similarly
situated persons, those who had participated in the bid,
their technical bids have been considered, whereas the
same has been denied in the case of the petitioner. It is
further contended that the petitioner had uploaded the
document under Annexure-5, i.e., Bill of Supply of
Electricity, from which it would be evident that electricity
charges for the period from 07.10.2021 to 28.02.2022, vide
bill no.ELE-1/21-22 dated 11.03.2022, was paid by M/s
Radhakrushna Publications Pvt. Ltd., with whom the
petitioner has executed the rent agreement, but the same
was not taken into consideration. It is contended that if the
owner of the premises has three phase supply of electricity
and for that payment has been made to the electricity
authority, in that case the tendering authority should have
applied their mind for consideration of the case of the
petitioner. Therefore, the action taken by the authority in
rejecting the technical bid of the petitioner cannot be
sustained in the eye of law. Consequentially, it is stated
that the order of rejection of the technical bid of the
petitioner should be set aside.
4. Mr. T. Pattnaik, learned Addl. Standing Counsel
appearing for the State-opposite parties contended that on
13.10.2022, the tender notice was issued by opposite party
no.2 inviting applications from the interested bidders for
printing, binding and delivery of Nationalized Text Book for
academic session 2023-24. Clause-2 of the tender
documents provides that the bidder should have own web
offset machine, two wire stitching machines, one cutting
machine and two bundling machines and three phase
industrial electric line connection. The tenderer who does
not have such machines, his tender will not be considered.
As the petitioner had not uploaded any electricity bill either
in the name of her firm or in the name of the firm from
which she is borrowing the electricity power, as ascertained
from the technical bid uploaded by the petitioner, the
technical bid of the petitioner was rejected. As such, no
illegality or irregularity has been committed by the
authority in rejecting the technical bid of the petitioner.
4.1 It is further contended that the petitioner has
never uploaded electric bill of three phase at the time of
submission of its bid and, therefore, rejection of its
technical bid is well justified. So far as the parity claim
along with M/s Amarjyoti Printers, Bhubaneswar is
concerned, it is contended that M/s Amarjyoti Printers had
uploaded its electricity bill in the e-tender portal. Later on,
a complaint was received by the Directorate that the firm
does not have electricity connection. Thereafter, the
technical committee was deputed to ascertain the fact and
on physical inspection it was found that the firm did not
have electricity connection. But, later on, a representation
was received from M/s Amarjyoti Printers enclosing a
certificate from the Section Incharge (Elect.), Mancheswar
B.E.D. to the effect that the concerned firm, having CA
No.8000013511, is regularly paying bills as a consumer of
TPCODL and has no outstanding dues. The Section
Incharge (Elect.), Mancheswar, B.E.D. has also mentioned
in his report that on 24.11.2022 at 12.58 PM, he has
received a complaint from M/s Amarjyoti Printers that
there was no power supply in its premises. On verification,
it was found that the power supply of the printing press
had been interrupted due to L.T. neutral disconnection of
its private transformer. Therefore, on the basis of the
certificate, the committee unanimously agreed to consider
the representation of M/s Amarjyoti Printer, Bhubaneswar
to allow it for the year 2023-24. As such, it cannot be said
that the petitioner stands on the same footing with that of
M/s Amarjyoti Printers so as to claim the benefit of parity.
Thereby, the State Level Purchase Committee is well
justified in rejecting the technical bid of the petitioner due
to non-uploading of the electricity bill by the petitioner.
Similarly, so far as M/s Divine Printers, Cuttack is
concerned, it is contended that M/s Divine Printers,
Cuttack has uploaded the electricity bill of M/s Siddarth
Drinks Pvt. Ltd., who is the landlord and has rented out
the premises to M/s Divine Printers. Therefore,
consideration of its bid cannot be said to be illegal or
arbitrary and, as such, the petitioner having not stood with
the same footing, the authority has rightly rejected its
technical bid. Thereby, the claim made by the petitioner
cannot be sustained in the eye of law and the writ petition
is liable to be dismissed.
5. This Court heard Mr. Santanu Kumar Sarangi,
learned Senior Counsel appearing along with Mr. Sudeep
Kumar Sarangi, learned counsel for the petitioner and Mr.
T. Pattnaik, learned Addl. Standing Counsel appearing for
the State-opposite parties by hybrid mode, and perused the
records. Pleadings having been exchanged, with the
consent of learned counsel for the parties this writ petition
is being disposed of finally at the stage of admission.
6. Before delving into the merits of the case,
relevant provisions of the tender documents are referred to
herein below:-
"Important Instructions to the Tenderers
for Printing and Binding of Nationalized
Text Book.
11. The Tender shall accompany the following
documents:-
(a) Cost of tender paper in shape of bank
draft to be enclosed.
(b) EMD as required duly pledged in favour
of Director, TBPM, Bhubaneswar.
(c) Self-attested copy of GST Regd.
Certificate and GST Clearance Certificate of
last 3 months.
(d) TECHNICAL BID duly filled in.
(e) PRICE BID duly filled in.
(f) Self-attested copy of PAN CARD.
(g) The "Terms & Conditions" duly attested
and given under an affidavit as prescribed.
(h) Inspection charge as required duly
pledged in favour of Director, T.B.P. & M.,
Bhubaneswar payable at Bhubaneswar.
(i) Document in support of ownership of
Web Offset Machine, two wire stitching
machines, one cutting machine, two
bundling/packet machines by the binding
firm.
(j) Document in support of
space/land/legal heir certificate of land
issued by competent authority within six
months prior to date of publication of
advertisement.
(k) Self attested copy of permanent D.I.C.
Registration/The Factory Act, 1948
Registration/Registration Certification under
Shop & Establishment Act, 1948.
(l) Three phase industrial electric
connection bill or any other supporting
documents of electric connection.
(m) Self attested copy of Income Tax Return
of last three years.
N.B.:- Failure to furnish the aforesaid
documents may entail rejection of the
Tender."
"Enclosure to Technical Tender (Form A):
Terms and Conditions for Printing &
Binding of N.T. Books:-
"xxx xxx xxx
02. The Tenderer should have own Web
Offset Machine, two wire stitching machines,
one cutting machine and two bundling
machines and three phase industrial electric
line connection. The Tenderer who does not
have such machines, his tender will not be
considered.
xxx xxx xxx"
7. On perusal of the aforesaid provisions, it is made
clear that a tenderer should have own web offset machine,
two wire stitching machines, one cutting machine and two
bundling machines and three phase industrial electric line
connection. As it appears, as per clause-2 of the aforesaid
terms and conditions, one of the requirements, as has been
specified therein, is that there must be three phase
industrial electric line in the premises. As such, sub-clause
(l) of clause-11 specifically provides that the tenderer shall
accompany three phase industrial electric connection bill
or any other supporting documents of electric connection,
and failure to furnish such document may entail rejection
of the tender. Thereby, these are the mandatory
requirements to be followed by a tenderer while submitting
the bid.
8. There is no dispute that the petitioner has taken
the premises on rent from M/s Radhakrushna Publications
Pvt. Ltd. by executing the rent agreement dated
07.10.2021, which has been marked as Annexure-3 to the
writ petition and, as such, M/s Radhakrushna Publications
has three phase electricity connection. The said agreement
was valid for a period of five years w.e.f. 07.10.2021. As
such, clause-3 of the said agreement provides that the
electricity dues shall be paid as per the portion used by the
petitioner. Along with the bid documents, the petitioner has
uploaded the bill of supply of electricity of TPCODL in
favour of the owner of the premises of the petitioner, i.e.,
M/s Radhakrushna Publications Pvt. Ltd vide Annexure-5,
which carries the electricity consumer number, consumer
ID, and also the petitioner furnished the tax invoices issued
under CGST Act/GST Act/SGST Act/UTGST Act, 2017,
where the period of electricity charges, i.e., from
07.10.2021 to 28.02.2022 and bill no.ELE-1/21-22 dated
11.03.2022 are mentioned. As it appears, the petitioner has
uploaded the above documents along with the bid
documents and also furnished the rent agreement.
Therefore, there is no iota of doubt that the petitioner has
complied with clause-2 of the terms and conditions for
Printing and Binding of Nationalized Text Books provided
under enclosure to Technical Tender (Form-A) and
intimated the authority that the premises is having three
phase industrial electricity connection along with other
requirements which the petitioner fulfilled.
9. It is of relevance to note that taking into
consideration this aspect, the petitioner was qualified in
the tender for the year 2021-22, but now a different stand
has been taken that the petitioner has not uploaded the
electricity bill, as per requirement of sub-clause (l) of
clause-11. If scrutiny is made to sub-clause-(l) of clause-
11, it puts a mandate that the tenderer was to furnish
three phase industrial electricity connection bill or any
other supporting documents of the electricity connection
along with the application. Thereby, by using the word "or",
it clearly mentioned that the tenderer has to produce either
(i) three phase industrial electricity connection bill; or (ii)
any other supporting documents of the electric connection.
That means, if either of the one is there, the bid of the
tenderer would be accepted. From the documents, which
were uploaded by the petitioner and which have been
placed on record, it is clearly evident that the bill of supply
of electricity to the owner of the premises, which the
petitioner has taken on rent, was uploaded and also the tax
invoices under CGST Act stands in the name of the owner
of the premises M/s Radhakrushna Publications Pvt. Ltd.,
from whom the petitioner has taken the premises on rent
by executing the rent agreement, which has also formed
part of the record of this case. As such, as per clause-3 of
the rent agreement, the electricity dues shall be paid as per
the portion used by the petitioner. Therefore, it is made
clear and conclusive that the premises of the petitioner is
connected with three phase supply of electricity and the
owner of the premises, who has given the same on rent,
has paid the electricity being collected from the petitioner.
Thereby, the requirement under clause-2 of the terms and
conditions of the tender documents has been complied
with. Furthermore, in the representation filed by the
petitioner even though such documents were annexed, but
the same were not considered in proper perspective.
Rather, the opposite parties have tried to justify their
action bereft of the materials. Thereby, such action of the
opposite parties is arbitrary, unreasonable and contrary to
the provisions of law. So far as consideration made to the
bid of M/s Amarjyoti Printers is concerned, as it appears,
the committee took steps for verification of the premises
itself and came to a conclusion on the basis of the
documents filed by it that it had satisfied clause-2 of the
tender conditions read with clause-11 of the tender
documents and, thereby, entertained the bid of the M/s
Amarjyoti Printers. But, the petitioner, having stand on the
same footing, has been discriminated, which violates Article
14 of the Constitution of India.
10. The petitioner having uploaded the electricity bill
of M/s Radhakrushna Publications Pvt. Ltd., of which it
was the tenant, as per the rent agreement vide Anenxure-3
dated 07.10.2021, the same should have been given due
credentials. The GST tax invoice, with regard to electricity
charges for the period from 07.10.2021 to 28.02.2022, also
indicates that the same stands in the name of M/s
Radhakrushna Publications Pvt. Ltd. Therefore, those
documents can very well be taken into consideration as
"any other" documents of electricity connection. The
expression "any other" is wide enough to include the
supporting documents of electricity connection to the
premises.
11. In Indra Sawhney v. Union of India, AIR 1993
SC 477 : 1992 Supp.(3) SCC 217, the Nine Judge Bench of
the apex Court while dealing with Article 14 of the
Constitution of India held that the doctrine of equality is a
dynamic and evolving concept, which has many facets. The
concept of equality before law means that among equals
the law should be equal and should be equally
administered and the likes should be treated alike. All that
Article 14 guarantees is a similarity of treatment and not
identical treatment.
12. In Omkar Lal Bajaj v. Union of India, AIR
2003 SC 2562 : (2003) 2 SCC 673, the apex Court held that
an order passed without application of mind deserves to be
annulled being an arbitrary exercise of power. However, if
two views are possible and the Government takes one of it,
it should not be amenable to judicial review on the ground
that the other view, according to courts, is a better view.
13. In State of U.P. v. Maqbool Ahmad, (2006) 7
SCC 521, the apex Court held that equal protection means
the right to equal treatment in similar circumstances, both
in the privileges conferred and in the liabilities.
14. In M. Nagaraj v. Union of India, (2006) 8 SCC
212, the apex Court held that the basic principle
underlying Article 14 is that the law must operate in all
persons under like circumstances, because equality is the
basic feature of the Constitution. The content of Article 14
was originally interpreted by the apex Court as a concept of
equality confined to the aspects of discrimination and
classification. The concept of Article 14 got expanded
conceptually so as to comprehend the doctrine of
promissory estoppels, non-arbitrariness, compliance with
rules of natural justice eschewing irrationality etc.
15. In M.P. Gangadharan v. State of Keral, (2006)
6 SCC 161: AIR 2006 SC 2360, the apex Court held that
the Constitutional requirement for judging the question of
reasonableness and fairness on the part of the statutory
authority must be considered having regard to the factual
matrix obtaining in each case. It cannot be put in a
straitjacket formula. Before an action is struck down, the
court must be satisfied that a case has been made out for
exercise of judicial review.
16. In Style (Dress Land) v. Union Territory,
Chandigarh, (1999) 7 SCC 80 : AIR 1999 SC 3678, the
apex Court held that in the absence of rules, the action of
the Government is required to be fair and reasonable.
17. In L.I.C. of India v. Consumer Education and
Research Centre, (1995) 5 SCC 482: AIR 1995 SC 1811,
the apex Court held that in the sphere of contractual
relations, the State, its instrumentalities, public
authorities or those whose acts bear insignia of public
element, action to public duty or obligation are enjoined in
a manner that is fair, just and equitable, after taking
objectively all the relevant options into consideration and in
a manner that is reasonable, relevant and germane to
effectuate the purpose for public good and in general public
interest and it must not take any irrelevant or irrational
factors into consideration or appear arbitrary in its
decision.
18. Applying the above propositions of law, as
enshrined in the context of Article 14 of the Constitution of
India, to the present case, this Court is of the considered
view that the entire action of the opposite parties is
arbitrary, unreasonable and discriminatory. Since the order
impugned rejecting the technical bid of the petitioner,
which has been passed without any application of mind
and mechanically, debars the petitioner to carry out its
business, it violates Article 19 (1)(g) of the Constitution of
India. Therefore, rejection of the technical bid of the
petitioner in a proceeding of the State Level Purchase
Committee meeting held on 05.12.2022 under Annexure-8
and consequential rejection of representation of the
petitioner vide Annexure-11 dated 20.02.2023, which has
been passed in pursuance of the order dated 03.01.2023
passed by this Court in W.P.(C) No. 36233 of 2022, cannot
be sustained in the eye of law and are liable to be quashed
and are hereby quashed. The opposite parties are directed
to take into consideration the technical bid submitted by
the petitioner as valid, in view of the documents filed by it,
and take follow up action by giving opportunity to the
petitioner in accordance with law.
19. In the result, the writ petition is allowed. But,
however, under the facts and circumstances of the case,
there shall be no order as to costs.
..................................
DR. B.R. SARANGI,
JUDGE
M.S. RAMAN, J. I agree.
...............................
M.S. RAMAN,
JUDGE
Signature Not Verified
Digitally Signed
Signed by: ASHOK KUMAR JAGADEB MOHAPATRA
Designation: Personal Assistant Orissa High Court, Cuttack
Reason: Authentication
Location: HIGH COURT OF ORISSA The 31st August. 2023, Ashok
Date: 31-Aug-2023 18:17:23
