Orissa High Court
Rabindra Kumar Das vs State Of Odisha And Others on 18 May, 2023
ORISSA HIGH COURT: CUTTACK
W.P.(C) NO. 28490 OF 2022
AND
W.P.(C) NO. 4547 OF 2023
In the matter of applications under Articles 226 and 227
of the Constitution of India.
---------------
AFR W.P.(C) No. 28490 OF 2022
Rabindra Kumar Das ..... Petitioner
-Versus-
State of Odisha and others ..... Opp. Parties
For Petitioner : M/s U.C. Mohanty and
S.K. Swain, Advocates
For Opp. Parties : Mr. P.K. Muduli,
Addl. Govt. Advocate
[O.P.Nos.1 to 3]
Mr. U.C. Behura,
Advocate [O.P.No.4]
W.P.(C) No. 4547 of 2023
Rabindra Kumar Das ..... Petitioner
-Versus-
State of Odisha and others ..... Opp. Parties
For Petitioner : M/s U.C. Mohanty and
S.K. Swain, Advocates
// 2 //
For Opp. Parties : Mr. P.K. Muduli,
Addl. Govt. Advocate
[O.P.Nos.1 to 3]
Mr. U.C. Behura,
Advocate [O.P.No.4]
P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R.SARANGI
AND
HONOURABLE MR. JUSTICE M.S. RAMAN
Date of hearing: 12.05.2023: Date of judgment: 18.05.2023
DR. B.R. SARANGI, J. One Rabindra Kumar Das, who is an 'A'
class contractor, has filed both the above noted writ
petitions. In W.P.(C) No. 28490 of 2022, he has sought for
direction to the opposite parties to finalize the tender and
award the contract in his favour, being the successful (L-
1) bidder, in view of the proceedings dated 30.09.2022
under Annexures-5 and 6, and further to execute
necessary agreement with him pertaining to the work
"Construction of Bar Association Hall with Amenity
Centre of District Court Building at Bhadrak for the year
2022-23" in respect of package no.5, pursuant to the
// 3 //
tender call notice under Annexures-2 and 3 series, by
quashing the letter dated 29.09.2022 under Annexure-8,
by which opposite party no.3 has constituted a fresh
technical evaluation committee and proceeded with the
tender process.
So far as W.P.(C) No. 4547 of 2023 is
concerned, it has been filed seeking to quash the letter
dated 08.02.2023 under Annexure-3, by stating therein
that as per the decision of the committee held on
06.02.2023 the petitioner has been disqualified as L-1
bidder, and consequential action thereof taken by the
authority, as without jurisdiction, invalid, inoperative and
amounts to overreaching the directions of this Court
contained in order dated 28.10.2022 under Annexure-1
and order dated 17.01.2023 under Annexure-2 passed in
connected W.P.(C) No. 28490 of 2022.
Since both the writ petitions arise out of the
same tender process and are interlinked, they have been
heard together and disposed of by this common judgment
which will govern both the cases.
// 4 //
2. The facts leading to filing of these two writ
petitions are precisely stated as follows:-
2.1 The petitioner is an "A" class contractor, having
registration number 225HW898 issued by the Chairman
of the Committee of C.E.S. & Engineering-in-Chief,
Odisha, Bhubaneswar with validity up to 31.03.2025, and
has got experience to undertake the work as assigned by
various public departments of the Govt. of Odisha. The
Govt. of Odisha in Works Department through its Chief
Construction Engineer, Eastern Circle (R&B), Balasore-
opposite party no.3, on behalf of the Governor of Odisha,
on 08.08.2022, invited NIT No.06/22-23, but the same
was cancelled. Thereafter, a fresh Invitation for Bids (IFB)
was published vide Bid Identification No.CCEEC-
10/2022-23, File No. 4164 dated 26.08.2022 by the very
same Chief Construction Engineer, Eastern Circle (R&B),
Balasore in respect of 5 nos. of packages and invited
percentage of rate bids, in double cover system (I & II) in
online mode for the construction of building works
(excluding CGST 6% and SGST 6%), from the class of
// 5 //
eligible contractors, as mentioned in Column-8 of the
table of the notice, who were registered with State
Government and other State Government contractors of
equivalent grade/class registered with Central
Government MES/Railways for execution of civil works.
2.2 As per the aforesaid IFB, the bid documents
were available in the website from 30.08.2022 and were to
be received on or before 13.09.2022 through online. The
technical bid was scheduled to be opened at 11.00 A.M.
on 14.09.2022 in the office of opposite party no.3 in
presence of bidders who wish to attend. Out of the
aforesaid five packages, package no.1 had approximate
value of work at Rs.3,10,23,900/-, package no.2 at
Rs.3,14,92,900/-, package no.3 at Rs.3,13,48,300/-,
package no.4 at Rs.3,17,52,950/- and package no.5 at
Rs.3,02,37,960/-. The petitioner, having satisfied all
eligibility criteria, participated in respect of five packages,
along with all bidders, and declared as responsive being
qualified in the technical bids of all the five packages.
Thereafter, the price bids of the responsive bidders in the
// 6 //
technical bids were opened accordingly. Out of the five
packages, the petitioner was declared as successful (L-1)
bidder in respect of four packages, i.e., 1, 2, 3 and 5,
having an offer of lowest price.
2.3 The DTCN (Detailed Tender Call Notice)
specifically provides the eligibility criteria of bidders and
the procedure for selection of bidders in the technical bid
as well as in the financial bid. The bidder fulfilling the bid
capacity, as per the formula and escalation factor
provided therein, shall be eligible to participate and shall
be declared as a responsive in the technical bid enabling
for opening of his price bid so as to be declared as
successful L1 bidder by the tender evaluation committee.
The petitioner had submitted the work experience with
similar nature of work, as per Schedule-D1, enclosing the
certificate issued by the competent authority and also
submitted list of similar nature of work in progress, as per
Schedule-D2, and he had also submitted the format in
respect of existing commitments and ongoing works, as
per Schedule-G of DTCN, with experience certificates duly
// 7 //
signed and provided by the concerned Divisional
Authorities.
2.4 As per the provisions of the DTCN, the
technical evaluation committee in its proceeding of the
meeting, which was held on 30.09.2022 at 11.00 A.M.,
evaluated all the technical bids submitted by the
respective bidders package-wise, including package no.5,
i.e., "Construction of Bar Association Hall with Amenity
Centre of District Court Building at Bhadrak for the year,
2022-23". The committee, which evaluated the technical
bids, was chaired by the Chief Construction Engineer,
Eastern Circle (R&B), Balasore-opposite party no.3 along
with four technical members. The technical evaluation
committee, while evaluating the bids of three numbers of
bidders, declared all the three bidders, including the
petitioner, as technically qualified. Thereafter, the price
bids of the responsive bidders, who were declared as
qualified in the technical bid evaluation, were assessed
and two bidders, namely, the present petitioner and Satya
Brata Pattnaik were declared as qualified, whereas the
// 8 //
other bidder, namely, Jaydev Padhi was declared as
disqualified by the tender evaluation committee. The
tender evaluation committee assessed the financial bids of
the petitioner and Satyabrata Pattnaik. The petitioner was
found to have offered lowest price @ 10.30% less than the
amount put to tender and derived at Rs.1,71,23,450.200.
Similarly, Satyabrata Pattnaik had quoted a less offer @
0.01% less than the tender amount and derived at
Rs.3,02,34,936.293. Therefore, in respect of package
no.5, the petitioner's offer being the lowest he was
declared and notified as successful (L1) bidder. So far as
package no.5 is concerned, the result of the financial bid
assessed by the tender evaluation committee was floated
in the website of the department and the same was also
sent to the respective e-mail ID of the bidders.
2.5 At this point of time, opposite party no.3-Chief
Construction Engineer, Eastern Circle (R&B), Balasore
issued to the petitioner the letter no.4953 dated
30.09.2022, which was sent through his e-mail ID, with a
request to attend its office on 01.10.2022 for verification
// 9 //
of the original documents uploaded during bidding. A
copy of the said letter was also forwarded to the
Superintending Engineer, Bhadrak (R&B) Division,
Bhadrak with a request to intimate the petitioner
accordingly. Subsequently, opposite party no.3 uploaded
letter no.4909 dated 29.09.2022 stating in the heading
"Proceeding of Tender Revocation" with further stipulation
therein that after getting a complaint regarding some
discrepancies from one of the bidders in respect of works,
a committee comprising the Chief Construction Engineer,
Asst. Executive Engineer, Estimator and Junior Engineer,
Estimator was constituted which unanimously opined for
revocation of the tender to bring it to pre-opening stage
for further evaluation of the bid.
2.6 Pursuant to the above notice, the petitioner, on
07.10.2022, appeared before the Estimator. Thereafter,
the petitioner, on 13.10.2022, filed a representation
before opposite party no.3 requesting him to finalize the
bid, as he is the successful (L1) bidder, but no action was
taken. Therefore, on 23.10.2022, he filed another
// 10 //
representation before opposite party no.2. But, opposite
party no.3 uploaded the proceeding of tender revocation
bearing no.4909 dated 29.09.2022. Consequentially, the
petitioner, even though was declared L1 bidder, could not
get such benefit. Therefore, he approached this Court by
filing W.P.(C) No. 28490 of 2022.
2.7 While entertaining the writ petition [W.P.(C) No.
28490 of 2022], this Court, on 28.10.2022, passed orders
to the following effect:-
"This matter is taken up through hybrid mode.
2. Heard Mr. U.C. Mohanty, learned counsel for
the petitioner and Mr. S.S. Kanungo, learned
Additional Government Advocate for the State.
3. Pursuant to the tender invited by opposite
party no.3 dated 26.08.2022 vide Bid
Identification No. CCEEC-10/2022-23 for
"Construction of Bar Association Hall with
Amenity centre of District Court Building at
Bhadrak for the year 2022-23", the petitioner
along with five others participated in the process
of bid. Out of six bidders, the bids of three
bidders were disqualified, whereas the petitioner
along with two other bidders was technically
qualified. Thereafter the price bid was opened. In
the price bid so far as one package is concerned
under Annexure-6, the petitioner was declared
qualified and accordingly vide order dated
30.09.2022 the petitioner was called upon to
appear on or before 01.10.2022 for verification of
the original documents uploaded during bidding.
// 11 //
However, the petitioner brings to the notice of this
Court the document under Annexure-8 dated
29.09.2022, wherein it has been indicated that
after getting a complain regarding some
discrepancies from one of the bidders in respect
of the work for which the technical bid has
already been opened, the Committee
unanimously opined for revocation of the tender
to bring it to pre-opening stage for further
evaluation of the bid.
4. Mr. U.C. Mohanty, learned counsel appearing
for the petitioner contended that there is no
question of re-evaluation of the technical bid once
it has been opened and as such, on 29.09.2022,
if such a decision has been taken, then on
30.09.2022 vide Annexure-7, the petitioner could
not have been called upon to participate for
verification of the documents. According to him,
the proceeding of the tender revocation dated
29.09.2022 is a back dated document. In support
of his contention, reliance has been placed in the
case of Bhupendra Kumar Dash v. State of
Odisha and others, 2016 (II) ILR-CUT-760, where
this Court already held that the District Tender
Committee could not have reopened the matter
after lapse of more than one month after having
given report on 23.04.2015 and having approved
by the tender of the petitioner for grant of
contract. Such reopening, whether it may be on
the basis of complaint or otherwise, cannot be
justified in law.
5. Mr. S.S. Kanungo, learned Additional
Government Advocate seeks time to obtain
instruction in this matter.
6. Let five extra copies of the writ petition be
served on Mr. S.S. Kanungo, learned Additional
Government Advocate, within three days for
enabling him to obtain instruction and file counter
affidavit.
// 12 //
7. Issue notice in I.A. 8. Call this matter next
week connecting with W.P.(C) No. 28198 of
2022."
2.8 Thereafter, the matter was listed on
04.11.2022, 17.01.2023 and 24.02.2023. But, on
17.01.2023, this Court passed the following order:-
"This matter is taken up through hybrid
mode.
2. Mr. U.C. Mohanty, learned counsel for
the petitioner seeks time to file rejoinder
affidavit.
3. List this matter after one week.
4. Rejoinder affidavit, if any, be filed in
the meantime.
5. Opposite parties are directed to
proceed with the allotment of the work in
favour of the selected person, so that the
work can be proceeded with, since no interim
order is operating."
2.9 Thereafter, the petitioner filed W.P.(C) No. 4547
of 2023 challenging the selection of Satyabrata Pattnaik-
opposite party no.7 by disqualifying the petitioner on the
ground that the petitioner has misled the Court and
perpetuated the illegalities by open legal fraud in the
shape of affidavit, which actions are purely malicious in
nature. In the said writ petition, the petitioner further
// 13 //
seeks to quash the order dated 08.02.2023, wherein it
has been stated that the petitioner has been disqualified
on 06.02.2023 as L1 bidder, without making any
communication of the same to him, which amounts to
overreaching the orders dated 28.10.2022 (Annexure-1)
and dated 17.01.2023 (Annexure-2) passed by this Court
in W.P.(C) No. 28490 of 2022.
3. Mr. U.C. Mohanty, learned counsel for the
petitioner contended that clause-126 of the DTCN
provides for eligibility criteria of bidder. Procedure to
participate in the online bidding e-procurement has been
provided under clauses-1.1 and 1.4, which clearly
envisages that furnishing scanned copy of such
documents is mandatory along with the tender
documents, otherwise the bid shall be declared as non-
responsive and thus liable for rejection. For submission of
bid through e-procurement portal, the bidder shall upload
the scanned copy of the documents in prescribed format
wherever warranted in support of eligibility criteria and
qualification information. The online bidder shall have to
// 14 //
produce the original documents in the portal before the
specified date as per DTCN. Similarly, clause-2 provides
for bid security and cost of bid documents, whereas
clause-8.4 provides that during bid opening the covers,
containing original financial instruments towards cost of
bid and bid security in the form specified in the DTCN,
received after last date of receipt of bid and before opening
of the bids shall be opened and declared. Clause-8.5.3
provides that after receipt of confirmation of the bid
security, the bidders may be asked in writing/online (in
their registered e-mail ID) to clarify on the uploaded
documents provided in the technical bid, if necessary,
with respect to any doubt or illegible documents required
for technical evaluation. Clause-8.6 provides that the
technical evaluation of all the bids shall be carried out as
per the information furnished by the bidders. But
evaluation of the bid does not exonerate the bidders from
checking their original documents and if at a later date
the bidder is found to have misled the evaluation through
wrong information, action as per relevant clause of DTCN
// 15 //
shall be taken against the bidder/contractor. As such,
there are some other provisions mentioned in the DTCN
so that bid can be conducted in a transparent manner.
3.1 In view of the provisions contained in the
DTCN, opposite party no.3 is under obligation to finalize
the tender in accordance with the provisions mentioned in
the tender documents. As per the provisions stipulated
and programme provided in the tender documents, the
petitioner, having all eligibility criteria, as per the DTCN,
and being a registered "A" class contractor, participated in
the tender in respect of all the packages, including
package no.5. The technical bid was opened on
14.09.2022 and, thereafter, the technical evaluation
committee on 27.09.2022 made a further stipulation that
the price bid shall be opened on 29.09.2022. But opposite
party no.3 issued proceeding of tender revocation, vide
letter no.4909 dated 29.09.2022, stating therein that after
getting a complaint regarding some discrepancies from
one of the bidders, the committee unanimously opined for
revocation of the tender to bring it to pre-opening stage
// 16 //
for further evaluation of the bid. Ultimately, the bid
submitted by the petitioner was rejected and the second
highest bidder, i.e., opposite party no.7-Satyabrata
Pattnaik, who had quoted @ 0.001% less than the
estimated cost, was decided to be awarded with the
tender. Thereby, the action of the authority is arbitrary,
unreasonable and contrary to the provisions of law and
the same is liable to be quashed.
To substantiate his contention, learned counsel
for the petitioner has relied upon the judgments of the
apex Court in the cases of Nazir Ahmed v. King
Emperor, AIR 1936 PC 253; Central Coal Field Ltd. v.
SLL-SML (Joint Venture Consortium), AIR 2016 SC
3814; M/s B.S.N. Joshi and Sons Ltd. v. Nair Coal
Services Ltd., AIR 2007 SC 437; Raunak International
Ltd. v. I.V.R. Construction Ltd., (1999) 1 SCC 492;
Ramana Dayaram Setty v. The International Airport
and others, (1979) 3 SCC 489; and of this Court in the
cases of M/s Shree Ganesh Construction v. State of
Odisha, 2016 (II) OLR 237; D.K. Engineering and
// 17 //
Construction v. State of Odisha and another, 2016 (II)
ILR CUT 515; Bhupendra Kumar Dash v. State of
Odisha, 2016 (I) ILR CUT 760; Tata Cellular v. Union of
India, AIR 1996 SC 11; Dinakrushna Pattnaik v. State
Odisha and others, 2023 (I) OLR 301.
4. Mr. P.K. Muduli, learned Addl. Government
Advocate appearing for the State-opposite parties
contended that for the work "Construction of Bar
Association Hall with Amenity centre of District Court
Building at Bhadrak for the year 2002-23, notice inviting
tender was issued on 26.08.2022 vide Bid Identification
No. CCEEC-10/2022-23. Pursuant to such tender call
notice, the petitioner submitted its bid along with
documents on 13.09.2022. Consequentially, the bid was
opened on 14.09.2022 at 11.00 A.M. and all the three
bidders, including the petitioner, who had participated,
were qualified by the technical evaluation committee on
27.09.2022 and the financial bid was scheduled to be
opened on 29.09.2022. Thereafter, on receipt of a
complaint from opposite party no.7, before opening of
// 18 //
financial bid, the tender inviting authority-opposite party
no.3 constituted a committee comprising (i) Junior
Engineer, Estimator, Office of the CCEEC (R&B),
Balasore; (ii) Asst. Executive Engineer, Estimator, and (iii)
Chief Construction Engineer, Eastern Circle (R&B),
Balasore. The committee unanimously decided to revoke
the proceeding of committee held on 27.09.2022, with
regard to technical evaluation, to pre-opening stage in
order to facilitate the re-evaluation of bid. Basing on such
compliant, re-evaluation was made by the tender
evaluation committee on 30.09.2022, wherein the
committee unanimously qualified the technical responsive
bidders, including the petitioner. It is contended that after
opening of financial bid of qualified bidders, the bid of the
petitioner amounting to Rs.2,71,23,450.20 being 10.30%
less than the estimated cost of work value of
Rs.3,02,37,960.00 stood lowest (L1). The petitioner, being
the L1 bidder, was asked to attend the office for
verification of original documents uploaded during e-
tendering.
// 19 //
4.1 At that moment, another complaint was
received on 30.09.2022 from opposite party no.7 against
the petitioner and again on 06.10.2022 another complaint
was received from opposite party no.7 with regard to
submission of false and fabricated documents submitted
by the petitioner. A report was called for from opposite
party no.4 vide letter no.4985 dated 06.10.2022 to
intimate regarding the genuineness of the work in hand
certificate dated 02/07.09.2022 uploaded by the
petitioner in respect of the present bid as well as the work
in hand certificate dated 10.06.2022 submitted by the
petitioner in respect of the work "Construction of Bar
Association Hall with Amenity Centre of District Court
Building at Bhadrak for the year 2022-23" pursuant to
the Bid Identification No.07/2022-23 dated 28.06.2022,
as the opposite party no.7 made complaint in respect of
two work in hand certificates submitted by the petitioner.
In response to the letter no.4985 dated 06.10.2022 of the
opposite party no.3, opposite party no.5, vide letter
no.3546 dated 11.10.2022, submitted reply to the
// 20 //
opposite party no.3. Since no clear information was
received from opposite party no.4, again, vide letter
no.5624 dated 10.11.2022, opposite party no.3 requested
the opposite party no.4 to intimate the authenticity/
genuineness of the documents, which were sent to the
opposite party no.4 vide letter no.4985/WE dated
06.10.2022. In reply to the letter dated 10.11.2022 of the
opposite party no.3, opposite party no.5, vide letter
no.5057 dated 26.12.2022, intimated that there is no
official record, i.e., original document available regarding
issue of work in hand certificate, which was signed on
10.06.2022, and there is no memo number and date on
the document signed on 07.09.2022.
4.2 Consequentially, there was a comparison of the
information provided by opposite party no.5, vide letter
no.3546 dated 11.10.2022, vis-à-vis Schedule-D2 (list of
similar nature of projects in progress) submitted by the
petitioner along with the bid, which clearly proved that
the petitioner had submitted incorrect information in
respect of two works, namely, "Construction of Academic
// 21 //
Building in connection with Infrastructure Development of
Bhadrak Autonomous College under World Bank
Assistance Programme (OHPEE) Phase-1 for the year
2020-21" and "Construction of 100 seated Boys Hostel
Govt. Polytechnic Bhadrak for the year 2020-21". So far
as the work "Construction of Academic Building in
connection with Infrastructure Development of Bhadrak
Autonomous College under World Bank Assistance
Programme (OHPEE) Phase-1 for the year 2020-21" is
concerned, the same has been completed on 31.08.2022,
whereas Schedule-D2 dated 12.09.2022, the petitioner
had shown the said work to be an "ongoing work".
Similarly, so far as the work "Construction of 100 seated
Boys Hostel Govt. Polytechnic Bhadrak for the year 2020-
21" is concerned, the same had been completed in the
month of July, 2022 and handed over to the department
on 12.08.2022, whereas in Schedule-D2 signed on
12.09.2022 the petitioner had shown the said work to be
an "ongoing work". Therefore, the information provided by
the petitioner in Schedule-G and D-2 were taken into
// 22 //
consideration while evaluating the technical bid of the
petitioner. As such, opposite party no.5 vide letter
no.3546 dated 11.10.2022 intimated that both the works,
as per Schedule-G, were completed as on last date of
receipt of the tender, whereas the petitioner has declared
in Schedule-G as well as Schedule-D2 that both the works
are ongoing work and value of the works remaining to be
completed as on 12.09.2022 were Rs.45,71,332/- and
Rs.10,11,911/- respectively.
4.3 Further, opposite party no.5 while forwarding
the proposal for extension of time, vide letter no.405/WE
dated 24.01.2013, submitted completion certificate of the
project "Construction of Academic Building in connection
with Infrastructure Development of Bhadrak Autonomous
College under World Bank Assistance Programme
(OHPEE) Phase-1 for the year 2020-21" indicating that
the work has been completed and handed over on
31.08.2022. Therefore, the petitioner has submitted
incorrect information in Schedule-D2 as well as Schedule-
G in respect of the work "Construction of Academic
// 23 //
Building in connection with Infrastructure Development of
Bhadrak Autonomous College under World Bank
Assistance Programme (OHPEE) Phase-1 for the year
2020-21". More over, in response to the letter no. 5624
dated 10.11.2022 of opposite party no.3, opposite party
no.5 has further clarified, vide letter no.894 dated
17.02.2023, that such certificate of the opposite party
no.4 stated to be issued on 02/07.09.2022 regarding
work in hand has not been issued from the said office.
Apart from the same, the petitioner also submitted a
solvency certificate no.22 dated 12.09.2022. But on
receipt of the objection from opposite party no.7, the
Branch Manager, Allahabad Bank, Bhadrak was
requested by opposite party no.3, vide letter no.5460
dated 03.11.2022, to intimate about the genuineness of
such solvency certificate, but yielded no result.
Thereafter, opposite party no.7 obtained relevant
information from the bank which was communicated to
the opposite party no.3 by the opposite party no.7, vide
letter dated 14.11.2022, that only one solvency certificate
// 24 //
no.22 dated 05.07.2022 has been issued in favour of the
petitioner, but the petitioner along with his bid uploaded
the solvency certificate of the same number, i.e., 22 but
with a different date as "12.09.2022". Therefore, the
petitioner was directed to produce the original of the
solvency certificate uploaded by him along with his bid to
verify the authenticity. It is contended that by producing
fraudulent documents, the petitioner wanted to take
advantage and, therefore, selection of the petitioner as L1
bidder cannot be sustained in the eye of law. As a result
of which, opposite party no.7, being the highest bidder,
the committee decided to settle the tender in his favour.
As such, no illegality or irregularity has been committed
by the authority in settling the work in favour of opposite
party no.7, even though the petitioner initially considered
as L1 bidder.
4.4 To substantiate his contention, learned Addl.
Government Advocate appearing for the State-opposite
parties has relied upon the judgments of this Court in
the cases of Pramod Kumar Sahoo v. State of Odisha,
// 25 //
2016 (II) OLR 819; and Chandra Sekhar Swain v. State
of Odisha, 2017 (I) OLR 666, which has been confirmed
by the apex Court in SLP (C) No. 9235-9237 of 2017
disposed of on 31.03.2017; and the judgments of the apex
Court in the cases of M/s Patel Engineering Ltd. v.
Union of India, (2012) 11 SCC 257 and Afcons
Infrastructure Ltd. v. Nagpur Metro Rail Corporation
Ltd., (2016) 16 SCC 818.
5. This Court heard Mr. U.C. Mohanty, learned
counsel appearing for the petitioner and Mr. P.K. Muduli,
learned Addl. Government Advocate appearing for the
State-opposite parties through hybrid mode and perused
the record. Pleadings having been exchanged between the
parties, with the consent of learned counsel for the parties
these writ petitions are being disposed of finally at the
stage of admission.
6. Admittedly, the petitioner was declared as L1
bidder by the technical evaluation committee for the work
under package no.5. But, subsequently, on complaint
being received the same was re-examined and on that
// 26 //
basis it was found that since the petitioner has taken
advantage of producing fraudulent documents, which
were annexed as per Schedule-D and Schedule-G in the
bid documents by uploading the same. On instructions
being received from the competent authorities with regard
to issuance of such documents, when it is came to notice
of the technical evaluation committee that the same were
not issued by them, ultimately the technical committee
took decision for settlement of the tender in favour of
opposite party no.7, he being the second highest bidder,
as the petitioner incurred disqualification in terms of the
provisions contained in the DTCN. Since there is no bar to
rectify an inadvertent error and mistake, which came to
the notice of the tender inviting authority upon receipt of
the complaint from one of the bidders, the decision was
unanimously taken by the committee to revoke the bid to
the pre-opening stage for further evaluation. Therefore, no
illegality has been committed in re-evaluating the bids
after receipt of the complaint against the successful
bidder and before issuance of the LoA (Letter of
// 27 //
Acceptance). Mere selection by the technical evaluation
committee does not create any right in favour of the
petitioner, as no LoA was issued in his favour for
executing the work.
7. Much arguments were advanced before this
Court that when W.P.(C) No. 28490 of 2022 is pending
adjudication, the decision has been taken by the tender
evaluation committee and, therefore, the same cannot be
sustained in the eye of law, as it is in violation of the
order passed by this Court on 28.10.2022. Perusal of the
aforesaid writ petition, it would be evident that the
petitioner has sought following relief:-
"In the aforesaid circumstances, it is humbly
prayed that this Hon'ble Court may graciously
be pleased to admit this writ application and
issue Rule Nisi calling upon the Opp. Parties to
show cause as to why this Writ application
shall not be allowed and if the Opp. Parties fail
to show cause or show insufficient cause, the
said Rule may be made absolute and on
hearing the parties through their counsel and
on calling for records, this Hon'ble Court be
further pleased to:
i) This Hon'ble Court be pleased to issue
appropriate writ/writs in holding that after
declaration of Annexure-5 & 6 and issuance of
Annexure -7 vide Letter No.4953 dated
30.09.2022, the issuance of Letter No.4909
dated 229.09.2022 under Annexure-8 is
// 28 //
without jurisdiction, invalid, inoperative & non-
existent in the eye of law when the Opp. Party
No.3 becomes "functus offficio" in
constituting a fresh Technical Evaluation
Committee is stopped to proceed further on the
basis of the said Letter dated 29.09.2022
under Annexure -8 as such the same is liable to
be quashed by this Hon'ble Court.
ii) Issue writ of Mandamus directing the
Opposite Parties to finlize the Tender & Award
the Contract in favour of the petitioner being the
successful LI bidder in view of the proceedings
dated 30.09.202 under Annexure-5 &
Annnexure-6 directing them for execution of
necessary Agreement in favour of the Petitioner
pertaining to the work i.e. Construction of bar
Association Hall with Amenity center of District
Court Building at Bhadrak for the year,2022-
23" in respect of Package no.5 under Annexure-
2 & 3 Series.
iii) This Hon'ble Court be further pleased to
pass such other appropriate writ/writs
direction/ directions, order /orders as would
be deem fit and proper in favour of the
petitioner.
And for which act of kindness the petitioner as
in duty bound shall ever pray."
8. In response to such relief sought by the
petitioner in W.P.(C) No. 28490 of 2022, the opposite
party no.3 filed counter affidavit, paragraphs-13 and 15
whereof read as under:-
"That the averments made in
paragraph No.9 of the writ petition are
disputed and denied. It is respectfully
submitted that as per DTCN Clause No.14
(Page-17), Clause No.126 (f) (Page-32) and
// 29 //
serial No.16 of Contract Data (Page-8), the
bidders who meet minimum qualification
criteria will be qualified only if, his available
bid capacity at the time of biding is more
than the estimated cost of the work. The
available bid capacity is calculated by a
formula as under.
Assessed Available Bid Capacity = (A x
N X 2- B), where.
A= Maximum value of works executed
in any one year during the last five years
(updated to the current price level) rate of
inflation may be taken as 10 percent per
year (escalation factor) which will take into
account the completed as well as work in
progress.
B= Value at current price level of the
existing commitments and ongoing works to
be completed during the next year (period of
completion of works for which bids are
invited); and
N= Number of years prescribed for
completion of the works for which the bids
are invited.
The information on Bid Capacity as on
the date of this bid is to be furnished as per
the format in Schedule -G. Turn Over
certificate on Civil Engineering Construction
works performed in the last five years are to
be furnished for which certificate from
Chartered Accountant is to be furnished.
However, the allegations/
complainants have received against the
petitioner that he had manipulated the data
and inflated the value of works. The Bid
Capacity calculated by the Petitioners is
wrong and not based on the above formula .
Hence the allegation/ complaints received
against the petitioner are under the scrutiny
of Opp. Parties.
xxx xxx xxx.
// 30 //
15. That the averments made in paragraph
No.11 of the writ petition are disputed and
denied. It is humbly submitted that the
evaluation of the bids has not yet been
completed. The letter of award has not yet
been completed. The letter of award has not
yet been issued simply on the ground of the
bidder remaining L1. The bid approval and
acceptance depend upon other criteria
mentioned in the DTCN and successful
completion of the bid evaluation.
It is further submitted that the
allegations/complaints are received against
the petitioner and the said complaints are
under scrutiny of Opp. parties.
All other allegations/averments made
in this paragraph are hereby disputed and
denied."
9. On the basis of the pleadings available, since it
was the specific case of the State-opposite parties that the
allegation received against the petitioner was under
scrutiny, considering such fact, this Court, vide order
dated 17.01.2023, directed the opposite party-authorities
to proceed with the allotment of the work in favour of the
selected person, so that the work can be proceeded with
since no interim order is operating. Pursuant to such
direction and upon receipt of detailed clarification, the
complaint received against the petitioner was finalized
upon disqualification of the petitioner on 06.02.2023.
// 31 //
Thereafter, the L2 bidder was called upon, vide letter
dated 08.02.2023, for negotiation of the rate. Accordingly,
the name of the L2 bidder was recommended to the
O.S.D. Chief Engineer (Buildings), Odisha, vide letter
dated 10.02.2023, for necessary approval, but the same
was not received. Consequentially, because of pendency of
the writ petitions, the work could not be progressed.
10. Clauses-14 and 16 of the DTCN stipulate the
eligibility criteria of satisfactory execution/completion of
similar nature of works, meaning thereby, construction of
building works during last five financial years, i.e., 2017-
18, 2018-19, 2019-20, 2021-21 and 2021-22. The
certificates to that effect were to be furnished in
prescribed proforma in Schedules D1, D2 and H of the
DTCN by the bidder to qualify for bidding and selection.
Any departure from the same is not acceptable. The
petitioner had filed W.P.(C) No. 28198 of 2022 in respect
of the work "Construction of 100 bedded Girls Hostel in
Odisha Adarsha Vidyalaya at Olanga under Bhadrak
Block for the year 2021-22"; W.P.(C) No. 28486 of 2022 in
// 32 //
respect of the work "Construction of 100 bedded Girls
Hostel in Odisha Adarsha Vidyalaya at Eram under
Basudevpur Block for the year 2021-22"; W.P.(C) No.
28487 of 2022 in respect of the work "Construction of 100
beded Girls Hostel in Odisha Adarsha Vidyalaya at
Santhapur under Tihidi Block for the year 2021-22"; and
W.P.(C) No. 28490 of 2022 in respect of the work
"Construction of Bar Association Hall with Amenity
Centre of District Court Building at Bhadrak for the year
2021-22" and, as such, W.P.(C) No. 4547 of 2023, has
also been filed for "Construction of Bar Association Hall
with Amenity Centre of District Court Building at Bhadrak
for the year 2021-22". As per the conditions stipulated in
the DTCN, merely becoming L1 bidder one does not
automatically get entitled to be awarded with the work
irrespective of genuineness of the documents submitted/
uploaded and their satisfactory verification/evaluation.
Furthermore, the tender document is not a statutory
document. As and when, any inadvertent error is found in
evaluation of bid/bidding process, the same can be
// 33 //
rectified by the tendering authority. As regards the
eligibility of the petitioner in respect of four packages,
owing to receipt of complaint dated 29.09.2022 from the
opposite party no.7 regarding some discrepancies in the
bid documents of the five packages, on 29.09.2022, the
committee opined for revocation of the tender to bring it to
pre-opening stage for further evaluation of the bid and, as
such, no letter of award of the work has been issued to
any of the bidders including the petitioner. As a
consequence thereof, the tendering authority has every
right to revoke the tender to pre-opening stage for further
evaluation of the bid, as no right had been accrued in
favour of the petitioner in any manner by the time the
complaint was received on 30.09.2022 from opposite
party no.7 and, as such, verification of original documents
could not be held awaiting enquiry report on the
allegations made against the petitioner. Thereafter,
another complaint was received on 06.10.2022. After
receipt of the detailed clarification on complaint against
the petitioner the bid was finalized upon disqualification
// 34 //
of the bid of the petitioner on 06.02.2023.
Consequentially, opposite party no.7 was called upon for
negotiation. As such, this Court, vide order dated
17.01.2023, never directed to consider the case of the
petitioner. As the petitioner has submitted
incorrect/fabricated documents along with the bid, his
case was not considered and disqualified on 06.02.2023.
11. It is made clear that on receipt of the complaint
allegation against the petitioner on 06.10.2022, the Chief
Construction Engineer, Eastern Circle, R&B, Balasore
wrote letter to the Superintending Engineer, Bhadrak
requesting him to intimate the genuineness of the
certificate dated 02/07.09.2022 which was uploaded by
the petitioner along with the bid in question as well as the
certificate dated 10.06.2022 uploaded by the petitioner in
respect of the work "Construction of Bar Association Hall
with Amenity Centre of District Court Building at Bhadrak
for the year 2022-23". On 11.10.2022, opposite party no.5
after receipt of the aforesaid letter dated 06.10.2022,
wrote a letter on 11.10.2022 intimating that the petitioner
// 35 //
had completed the work "Construction of 100 seated boys
hostel of Govt. Polytechnic, Bhadrak" to the tune of
Rs.3,27,17,850/- instead of Rs.3,00,00,000/-. Further,
for the work of construction of academic building in
Bhadrak Autonomous College, the petitioner had
uploaded to the tune of Rs.2,80,00,000/-, whereas the
Superintending Engineer, Bhadrak had informed that the
petitioner had completed the work of Rs.2,65,15,064/-.
After receipt of the aforesaid letter, the Chief Construction
Engineer, Eastern Circle, R&B, Balasore again wrote a
letter to the Superintending Engineer, Bhadrak with
regard to genuineness of the document. In response to the
same, it was intimated that the petitioner had uploaded
the incorrect work experience certificate dated
02/07.09.2022 along with his bid for the work in
question. Therefore, in view of the stand taken in the
counter affidavit filed in W.P.(C) No. 28490 of 2022 that
the allegations received against the petitioner are under
scrutiny and, as such, this Court also directed the
opposite party-authorities to proceed with the allotment of
// 36 //
the work in question in favour of the selected persons
since there is no interim order operating. Therefore, on
receipt of the detailed clarification on the complaint
against the petitioner the bid was finalized upon
disqualification of the bid of the petitioner on 06.02.2023.
In such eventuality, no illegality or irregularity can be said
to have been committed by the authority in disqualifying
the petitioner for giving false and fabricated documents by
committing fraud on the authority.
12. It is worthwhile to mention here that
disqualification of the petitioner has been made as per
Clauses-119(a) and 126(f) of the DTCN, which are
extracted hereunder:-
119. Even qualified criteria are met, the
bidders can be disqualified fir the following
reasons, if enquired by the Department
(a) making a false statement or declaration.
xxx xxx xxx
126. ELIGIBILITY CRITERIA:-
To be eligible for qualification, applicants shall
furnish the followings:-
xxx xxx xxx
// 37 //
f. Submission of the required information
on his/their available bid capacity at the
expected time of bidding as per Clause-14. The
statement showing the value of existing
commitments and ongoing works as well as the
stipulated period of completion remaining for
each of the works listed (Schedule -G) should
be countersigned by the Engineer-in-Charge not
below the rank of an Executive Engineer which
is mandatory if it is NIL then an affidavit must
be furnished in this regard as mentioned in
Contract Data.
xxx xxx xxx"
In the above view of the matter, disqualification of the
petitioner's bid is within the competency of the authority
and as such the same is in compliance of the provisions
contained in the DTCN. Thereby, no error can be found
with the authority in rejecting the bid of the petitioner.
13. Once the petitioner was found ineligible, as he
had produced false documents and committed fraud on
the authority in violation of clauses-119 (a) and 126 (f) of
the DTCN, the committee recommended for negotiation
with the second lowest bidder, i.e., opposite party no.7.
Accordingly, letter no.805 dated 08.02.2023 was issued to
the L2 bidder, namely, opposite party no.7 to negotiate at
par with the rate quoted by the L1 bidder. The 2nd lowest
// 38 //
bidder (opposite party no.7) agreed to negotiate at par
with the rate quoted by L1 bidder (petitioner) and his
original documents were verified with the uploaded
documents. The tender of the 2nd lowest bidder (opposite
party no.7) being minus 10.30% less than the amount put
to tender, being single negotiated tender was
recommended to the OSD-Chief Engineer, (Building),
Odisha, Bhubaneswar for approval. In view of such
position, this Court does not find any error or illegality
committed by the opposite parties in selecting opposite
party no.7, as the L1 bidder in the interest of justice,
equity and fairplay. As such, the Chief Engineer Building,
Odisha is to grant necessary approval so that the work
can be progressed and completed within a stipulated time.
14. Though the petitioner has relied upon plethora
of judgments, but the same were considered on their
respective facts and circumstances. If scrutiny will be
made to the judgment in the case of M/s B.S.N. Joshi &
Sons Ltd. (supra), wherein the apex Court held that when
a decision is taken by the appropriate authority upon due
// 39 //
consideration of the tender document submitted by all the
tenderers on their own merits and if it is ultimately found
that successful bidders had in fact substantiated and
complied with the purport and object for which essential
conditions were laid down, the decision is to be approved.
The principles decided in the aforementioned case have no
application to the present context. Reliance has been
placed to the judgment of the apex Court in the case of
Tata Cellular (supra), by which the apex Court laid down
certain guidelines regarding judicial review of tender
matter and decision making process. There is no dispute
with regard to the principles laid down by the apex Court
and applying such principles to the present case, this
Court is of the considered view that the authority has not
exceeded its power for deciding the matter and reached a
decision which no reasonable tribunal would have
reached and, as such, the authority has not abused its
power and also committed a breach of the rules of the
natural justice. Reliance has also been placed on various
judgments of this Court and in many of those judgments
// 40 //
one of us (Dr. Justice B.R. Sarangi) is the author. But the
principles laid down by this Court have been wrongly
interpreted by the petitioner and, as such, the same are
not applicable to the present case because by producing
fraudulent documents the petitioner wanted to gain the
benefits, that itself cannot sustain in the eye of law.
15. In Ram Chandra Singh v. Savitri Devi,
(2003) 8 SCC 319, the apex Court held has follows:-
"Fraud as is well-known vitiates every solemn
act. Fraud and justice never dwells together.
Fraud is a conduct either by letter or words,
which induces the other person, or authority to
take a definite determinative stand as a
response to the conduct of former either by
word or letter. It is also well settled that
misrepresentation itself amounts to fraud.
Indeed, innocent misrepresentations may also
give reason to claim relief against fraud. A
fraudulent misrepresentation is called deceit
and consists in leading a man into damage by
willfully or recklessly causing him to believe
and act on falsehood. It is a fraud in law if a
party makes representations which he knows
to be false, and injury ensues therefrom
although the motive from which the
representations proceeded may not have been
bad. An act of fraud on court is always viewed
seriously. A collusion or conspiracy with a view
to deprive the rights of the others in relation to
a property would render the transaction void
ab initio. Fraud and deception are
synonymous. Although in a given case a
deception may not amount to fraud, fraud is
// 41 //
anathema to all equitable principles and any
affair tainted with fraud cannot be perpetuated
or saved by the application f any equitable
doctrine including res-judicata."
The said principle has also been referred to by
this Court in the case of Umesh Chandra Chinera v.
Chairman & Managing Director, Bharat Petroleum
Corporation, 2022 (II) ILR CTC 604. The said view has
also been taken by the apex Court in Bhaurao Dagdu
Parlakar v. State of Maharastra, (2005) 7 SCC 605.
The elaborate discussion has been made with regard to
the meaning of fraud in Shrisht Dhawan v. Shaw Bros,
(1992 1 SCC 534, which has also been referred to in
Roshan Deen v. Preeti Lal, (2002) 1 SCC 100, Ram
Preeti Yadav v. U.P. Board of High School and
Intermediate Education, (2003) 8 SCC 311 and Ashok
Leyland Ltd v State of T.N., (2004) 3 SCC 1.
16. In view of the aforesaid factual matrix, it is
made clear that the petitioner has not approached this
Court with clean hands.
// 42 //
In State of Haryana v. Karnal Distillery, AIR
1977 SC 781, the apex Court refused to grant relief on the
ground that the applicant had misled the Court.
In Chancellor v. Bijayananda Kar, AIR 1994
SC 579, the apex Court held that a writ petition is liable
to be dismissed on the ground that the petitioner did not
approach the Court with clean hands.
Taking into consideration the above judgments,
this Court, in Netrananda Mishra v. State of Orissa,
2018 (II) OLR 436, came to a conclusion in paragraph-26
of the said judgment and held as under:-
"...........For suppression of facts and having
not approached this Court with a clean hand,
the encroacher is not entitled to get any relief,
particularly when the valuable right accrued in
favour of the petitioner is being jeopardized for
last 43 years for no fault of him, on which this
Court takes a serious view............"
Therefore, applying the above ratio to the present case,
this Court is of the considered view that by giving
distorted facts, the petitioner has misled the authority.
The same has also been taken by this Court in the case of
// 43 //
State of Odisha and others v. Lalat Kishore
Mohapatra and Anr., 2022 (Supp.) OLR 970.
17. The opposite parties have taken positive stand
before this Court that if in a decision making process
some mistake has been pointed out and if an unconscious
ignorance and forgetfulness of a fact has been taken into
consideration and subsequently it has been detected that
wrong has been committed, in that case, the authority
has got every right to rectify the same. A mistake which
has been committed in the process of selection, the
authority got every right to rectify the same if it has been
brought to their notice. The word "mistake" is generally
used in the law of contracts to refer to an erroneous
belief- a belief that is not in accord with the facts. To
avoid confusion, it should not be used, as it sometimes is
in common speech, to refer to an improvident act, such as
the making of a contract, that results from such an
erroneous belief. Nor should it be used, as it sometimes is
by Courts and Writers, to refer to what is more properly
called a misunderstanding, a situation in which two
// 44 //
parties attach different meaning to their language. An
unconscious ignorance or forgetfulness of a fact, past or
present, material to the contract, or a belief in the present
existence of a thing material to the contract, which does
not exist, some intentional act, omission, or error arising
from ignorance, surprise, imposition, or misplaced
confidence; in a legal sense, the doing of an act under an
erroneous conviction, which act, but for such conviction,
would not have been done.
18. In Deva Metal Powders (P) Ltd. v. Commr. Of
Trade Tax, U.P., (2008) 2 SCC 439, the apex Court held
that 'mistake' means to take or understand wrongly or
inaccurately; to make an error in interpreting it; it is an
error, a fault, a misunderstanding, a misconception.
If an unconscious, ignorance and forgetfulness
of facts has been taken into consideration and
subsequently, it has been detected that a wrong has been
committed, the authority has got right to rectify the same.
// 45 //
In State of Punjab v. Jagdip Singh and
Others, AIR 1964 SC 521, the apex Court held as follows:
"The respondents were officiating Tahasildar
in the erstwhile State of Pepsu. By notification
dated October 23, 1956 made by the Financial
Commissioner of Pepsu they were confirmed
as Tahasildars with immediate effect. No
posts were, however, available at that time in
which the respondents could be confirmed.
The Supreme Court held that there being no
vacancy in which the confirmation could take
place, the order of the Financial Commissioner
confirming the respondent as permanent
Tahasildars must be held to be wholly void. It
was further held that where a Government
servant has no right to a post or to particular
status, though an authority under the
Government acting beyond its competence had
purported to give that person a status which it
was not entitled to give, he will not in law be
deemed to have been validly appointed to the
post or given the particular status."
In case of Sundar Lal and others v. State of
Punjab (1970) S.L.R. 59 a Full Bench of the Punjab and
Haryana High Court held as follows
"If owning to some bona fide mistake the
Government has taken a decision regarding
confirmation of an officer, it can certainly
revise its decision at a subsequent stage,
when the mistake comes to its notice."
// 46 //
In case of K.B. Sharma v. Transport
Commissioner, U.P., AIR 1968 Allahabad, 276 the Court
held as follows:-
"An order of confirmation, if passed under
some mistake, could certainly be revised with
a view to correct the mistake and that such a
revision even if it might affect the person
confirmed earlier, could by no means attract
article 331 of the Constitution."
Similar view has also been taken by this Court
in Sri Udayanath Jena v. State of Orissa represented
by the Director of Health Services, Orissa and others,
1974(1) C.W.R. 587.
In view of the law laid down by the apex Court
as well as various High Courts it is no more res integra
that the authority, who has committed a mistake, can
rectify the same if it is brought to its notice at a
subsequent stage.
19. So far as applicability of estoppel is concerned,
in Union of India v. Rakesh Kumar and others, (2001)
4 SCC 309, the apex Court held that no person can claim
// 47 //
any right on the basis of the decision which is de hors the
statutory rules nor can there be any estoppel.
In view of such position, the principle of
estoppel will not apply to the present context, inasmuch
as if the mistake has been discovered, the same is to be
rectified.
20. In Chandra Sekhar Swain (supra), relying
upon the judgment of the apex Court in the case of State
of Jharkhand v. M/s CWE-SOMA Construction, AIR 2016
SC 3366, this Court, in paragraph-18 of the said
judgment, held as under:-
"12. In case of a tender, there is no
obligation on the part of the person issuing
tender notice to accept any of the tenders or
even the lowest tender. After a tender is called
for and on seeing the rates or the status of the
contractors who have given tenders that there
is no competition, the person issuing tender
may decide not to enter into any contract and
thereby cancel the tender. It is well-settled that
so long as the bid has not been accepted, the
highest bidder acquires no vested right to have
the auction concluded in his favour
(vide Laxmikant and Ors. v. Satyawan and
Ors. (1996) 4 SCC 208: (AIR 1996 SC
2052); Rajasthan Housing Board and Anr. v.
G.S. Investments and Anr. (2007) 1 SCC 477 :
(2006 AIR SCW 5968) and Uttar Pradesh Avas
Evam Vikash Parishad and Ors. v. Om
// 48 //
Prakash Sharma (2013) 5 SCC 182 : AIR 2013
SC (Supp) 495))."
"14. The State derives its power to enter into a
contract under Article 298 of the Constitution of
India and has the right to decide whether to
enter into a contract with a person or not
subject only to the requirement of
reasonableness under Article 14 of the
Constitution of India...."
The aforesaid judgment has been confirmed by the apex
Court with the dismissal of SLP(C) No. 9235-9237 of
2017.
21. As there is no concluded contract existed
between the parties, the claim made by the petitioner to
award the contract in his favour on the basis of the so
called consideration made cannot be acceded to.
Therefore, the decision taken for revocation on the
assessment made by the tender committee on the basis of
the materials available on record cannot be also said to be
mala fide exercise of power by the authority concerned. If
the DTCN specifies the mode of submission of tender
document and that mode is found to have been not
followed, the submission of tender document itself is
// 49 //
defective one. The tender document has to be in
consonance with the DTCN and it must be unconditional
one and in proper form. Merely because the petitioner was
found, on consideration of an erroneous document, that
by itself cannot create a right in favour of the petitioner,
unless the parties have entered into agreement and there
is concluded contract to that extent. Similar view has also
been taken by the reference made to Rishi Kiran
Logistics v. Board of Trustees, (2015) 13 SCC 233.
22. Since no right has been accrued in favour of
the petitioner and the authorities, having realized their
mistake, rectified the same and that the same is well
within their jurisdiction, this Court is not inclined to
interfere with the decision so taken.
23. Section 10 of the Contract Act, 1872 envisaged
that "All agreements are contracts if they are made by the
free consent of parties competent to contract, for a lawful
consideration and with a lawful object, and are not hereby
expressly declared to be void." Meaning thereby, right to
make a contract includes right not to make a contract.
// 50 //
But said right is inherent in every person capable of
entering into a contract. Therefore, once mistake was
found out and the same has been rectified, it is within the
domain of the authority to enter into a contract with a
person, who is found eligible. Thereby, no illegality or
irregularity has been committed by the authority. This
view has been taken by apex Court in the case of Patel
Engineering Limited (supra).
24. In Afcons Infrastructure Limited (supra), the
apex Court, while dealing with Government contracts and
tenders- modes of entering into a Government contract-
public auction/tender- tender conditions/criteria/norms/
Request for Proposal (RFP) conditions/Notice Inviting
Tender (NIT)/advertisement/ Invitation to Offer/reserve
price/pre-qualifications/scope of judicial review, held that
the words used in the tender documents cannot be
ignored or treated as redundant or superfluous and that
they must be given meaning and their necessary
significance. If that would be taken into consideration in
the present case, the steps taken by the opposite party-
// 51 //
authorities are well justified and, as such, no fault can be
found with them.
25. Taking into consideration the facts and law, as
discussed above, this Court does not find any illegality or
irregularity has been committed in the decision making
process of selection of opposite party no.7 as a successful
bidder in respect of the work in question under package
no.5 so as to cause interference of this Court.
26. In the result, both the writ petitions merit no
consideration and the same are hereby dismissed.
Consequentially, the opposite parties are directed to take
follow up action immediately. However, 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 Orissa High Court, Cuttack
Signed by: ASHOK KUMAR JAGADEB MOHAPATRA
Designation: Personal Assistant The 18th May, 2023, Ashok
Reason: Authentication
Location: HIGH COURT OF ORISSA
Date: 18-May-2023 17:55:51
