Orissa High Court
Prafulla Kumar Mohapatra vs State Of Odisha & Others ..... Opposite ... on 5 December, 2023
Bench: B.R. Sarangi, Murahari Sri Raman
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.39578 of 2023
Prafulla Kumar Mohapatra ..... Petitioner
Mr. P.C. Nayak, Advocate
Vs.
State of Odisha & Others ..... Opposite Parties
Mr. P.P. Mohanty, AGA
CORAM:
ACTING CHIEF JUSTICE DR. B.R. SARANGI
MR. JUSTICE MURAHARI SRI RAMAN
ORDER
05.12.2023
W.P.(C) No.39578 of 2023
And
I.A. No.19132 of 2023
Order No. This matter is taken up through hybrid mode.
01.
2. Heard Mr. P.C. Nayak, learned counsel appearing for the
Petitioner and Mr. P.P. Mohanty, learned Additional Government
Advocate appearing for the State-opposite Parties.
3. The Petitioner has filed this writ petition seeking to quash
the decision making process adopted by the tender authority in
inviting 2nd tender for the self same work vide tender call notice
dated 23.11.2023 under Annexure-1 and further to issue direction
to Opposite Party No.1 to approve the 1st evaluated lowest bid of
the petitioner which was recommended vide order dated
20.10.2023 under Annexure-6 in respect of the tender call notice
dated 31.07.2023 in Annexure-2 wherein the authority has
recommended the bid of the petitioner, having quoted 5.33% less
i.e. Rs.34,23,78,893/- as against the tender cost of
Rs.36,16,55,110/-, whereas the cost of second tender dated
23.11.2023 is Rs.36.72, in the interest of State exchequer.
4. Mr. P.C. Nayak, learned counsel appearing for the
Petitioner vehemently contended that when Opposite Party No.3
has recommended the name of the Petitioner for approval of the
tender work under Annexure-6 dated 20.10.2023 as he is the
lowest bidder having quoted less than the cost of the tender, the
fresh advertisement should not have been issued. Inaction in
approving the bid of the Petitioner is absolutely arbitrary,
unreasonable and contrary to the provisions of law. To
substantiate his contention, he has relied upon the judgment of the
Apex Court in BECIL v. Arraycom India Limited and others,
(2010)1SCC139, wherein the apex Court in paragraph-6 held that
in contracts to be given by the government authorities or statutory
bodies or instrumentalities of the State, Article 14 of the
Constitution applies. Hence, there should be transparency by
holding an open public auction/tender because such contracts
often involve huge amounts of public money. Ordinarily, the
lowest bidder should be given the contract. He has also further
relied upon the judgment of this Court in Sampad Samal v. State
of Odisha & Others, AIR 2017 Orissa 33, wherein one of us ( Dr.
B.R. Sarangi, J) is a Member. In paragraph-7 of the said judgment,
this Court held as follows:-
"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 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."
5. In view of such position, without approving the
recommendation made by the authority so far as the bid of the
Petitioner is concerned, issuance of fresh tender call notice cannot
be sustained in the eye of law.
6. Mr. P.P. Mohanty, learned Additional Government
Advocate appearing for the State-opposite Parties seeks time to
obtain instructions in this matter.
7. Issue notice to the Opposite Parties both in main case and
interlocutory application.
8. Since Mr. P.P. Mohanty, learned Additional Government
Advocate accepts notice on behalf of Opposite parties, let four
extra copies of the writ petition be served on him within three
working days to enable him to obtain instructions or file counter
affidavit, if any.
9. Put up this matter next week.
(DR. B.R. SARANGI)
ACTING CHIEF JUSTICE
Laxmikant
(M.S. RAMAN)
JUDGE
Signed by: LAXMIKANT MOHAPATRA
Designation: SENIOR STENOGRAPHER
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 06-Dec-2023 10:24:58
