Orissa High Court
M/S. Bansal Infraprojects Pvt. Ltd vs State Of Odisha & Others ..... Opposite ... on 24 June, 2024
Bench: B.R. Sarangi, G. Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 334 of 2024
M/s. Bansal Infraprojects Pvt. Ltd., ..... Petitioner
Bolangir
Mr. P.C. Nayak, Advocate
Vs.
State of Odisha & Others ..... Opposite Parties
Mr. T. Patnaik, ASC
CORAM:
DR. JUSTICE B.R. SARANGI
MR. JUSTICE G. SATAPATHY
ORDER
24.06.2024
Order No. This matter is taken up by hybrid mode.
05.
2. Heard Mr. P.C. Nayak, learned counsel for the petitioner and Mr.
T. Patnaik, learned Addl. Standing Counsel appearing for the State-
opposite parties.
3. The petitioner has filed this writ petition seeking to quash the
second tender call notice issued by the authority for the selfsame work,
vide tender call notice dated 30.12.2023, under Annexure-1 (sl.no.13 of
work on excess rate), as the petitioner was qualified in the technical bid it
stood as 1st lowest bidder in the price bid and, thereafter, on negotiation its
case was recommended for approval, as per Annexures-3,4,5 and 9
respectively, pursuant to first tender call notice dated 28.06.2023 under
Annexure-9 for the work "improvement such as widening and
strengthening of Jampadar-Sikerkupa Road (ODR) from 0/000 km to
33/134 km, in the district of Kalahandi under State Plan". The petitioner
also seeks to quash the decisions of the authority under Annexures-10 and
11 in cancelling the tender work, and issue direction to opposite party no.1
to approve its tender, as per the recommendation of the tendering
authority, i.e., opposite party no.3 under Annexure-9 dated 20.12.2023 in
terms of para-6.3.15 of OPWD Code in respect of the tender call notice
dated 28.06.2023 under Annexure-2.
4. Mr. P.C. Nayak, learned counsel for the petitioner contended that
pursuant to the tender invited by the opposite parties for the work
"Improvement such as widening and strengthening of Jampadar-Sikerkupa
Road (ODR) from 0/000 km to 33/134 km" with an estimated cost of
Rs.49,64,48,641/- with various tender conditions, the petitioner
participated in the process of tender and having become successful, its
case was recommended to the Government by the Chief Engineer (DPI &
Roads), Odisha on 02.12.2023 under Annexure-9, which also indicates
that the tender is valid up to 28.01.2024. But, without taking into
consideration the recommendation made by the competent authority, a
fresh tender has been issued for the selfsame work with an estimated cost
of Rs.49.90 Crore under Annexure-1. It is contended that when the
petitioner is ready to undertake the work and its bid was accepted and
recommendation was made to the Government, vide letter dated
02.12.2023 under Annexure-9, at whose instance and interest, without
accepting the bid of the petitioner, fresh bid has been issued on
30.12.2023, wherein the bid amount, which was fixed as Rs.49.64 Crores
has been enhanced to Rs.49.90 Crores. It is further contended that
pursuant to the recommendation made by the authority to the Government
vide Annexure-9, no communication has been received from the State
and, on the other hand, fresh tender has been issued by the authority under
Annexure-1. Thereby, the action of the authority is arbitrary, unreasonable
and contrary to the provisions of law. It is further contended that the
matter is fully covered by the judgments of this Court in the cases of M/s
Shree Ganesh Construction v. State of Odisha, 2016 (II) OLR 237; M/s
Sical Logistics Ltd. v. Mahanadi Coalfields Ltd., 2017 (II) ILR CUT
1035; Sampad Samal v. State of Odisha, AIR 2017 ORISSA 33 and
judgment of the apex Court in the case of State of Uttar Pradesh v.
Sudhir Kumar Singh, (2021) 19 SCC 706.
5. Mr. B. Mohanty, learned Addl. Government Advocate appearing
for the State-opposite parties contended that in fact, while cancelling the
bid, no opportunity of hearing was granted to the petitioner. He also
admitted that the matter is covered by the judgment of this Court in the
case of M/s Shree Ganesh Construction (supra).
6. Having heard learned counsel for the parties and after going
through the records, this Court finds that admittedly opportunity of
hearing was not given to the petitioner while cancelling the bid of the
petitioner. Thereby, the order of cancellation so passed by the authority
cannot be sustained in the eye of law.
7. In M/s Shree Ganesh Construction (supra), this Court in
paragraph-13, held as under:-
"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 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."
8. In M/s Sical Logistics Ltd. (supra), this Court in paragraphs-14, 19
and 20 held as under:-
"14. In view of the aforesaid facts and
circumstances, this Court is of the considered view that
by way of subsequent explanation given in the counter
affidavit the communications dated 17.03.2017 in
Annexures-5 and 6 cancelling the tender in question
without assigning any reason cannot sustain in the eye
of law. More so, in view of the Central Vigilance
Commission guidelines dated 24.03.2005, the tender
accepting authority is not free to take any decision in
an arbitrary manner and is bound to record clear and
logical reasons for any such action of rejection/recall
of tenders on the file. In view of such position, in
absence of any reason communicated to the petitioner,
the order so passed in Annexures-5 and 6 dated
17.03.2017 cannot sustain."
xxx xxx xxx
19. The intervenor contended that pursuant
to subsequent tender dated 20.03.2017 it had quoted
lower price than that of the petitioner quoted pursuant
to earlier tender dated 13.10.2016. But that itself
cannot be said to be a ground to cancel the tender
which has not seen the light of the day and in which
this price bid of the petitioner was disclosed and known
to all after the reverse bidding was over. As such, the
cancellation of tender dated 17.03.2017 being without
assigning any reason, subsequent issuance of fresh
tender quoting a lower price than that of petitioner
pursuant to earlier tender dated 13.10.2016 cannot be
justified, more particularly this Court cannot go into
the financial implication of a fresh tender in view of
ratio decided by CWE-SOMA CONSORTIUM
(supra).
20. In view of the factual and legal
discussions made above, this Court is of the considered
view that the orders of cancellation of tender dated
17.03.2017 passed in Annexures-5 and 6 cannot sustain
in the eye of law and the same are hereby quashed.
Consequentially, the re-tender notice dated 20.03.2017
issued by opposite party no.1 in Annexure-7 also
cannot sustain in the eye of law and the same is
accordingly quashed."
9. In Sampad Samal (supra), this Court in paragraphs-9, 14 and 15, held
as under:-
"9. Further, resorting to clause 10 of the terms and
condition of tender papers, whereby right to reject is
reserved by the authroity concerned without assigning
any reason, can be justified only when there is proper
and adequate ground for passing an order of
cancellation and not in an arbitrary manner, as has
been done in the present case.
xxx xxx xxx
14. Applying the aforesaid well settled principles to the
present context and taking into consideration the
conditions stipulated in clause-17 of the tender
document read with clause-10 of the terms and
conditions of the tender paper and giving them their
plain meaning, as the authority concerned has passed
the impugned order of cancellation, without any proper
and adequate ground, rather, as it is clear, in an
arbitrary manner because of pendency of frivolous
petition, the same cannot be sustained in the eye of law.
15. In view of the aforesaid, this writ petition deserves
to be allowed and is accordingly allowed. The orders
dated 04.02.2016 and 03.02.2016 are quashed only to
the extent with regard to work at serial no.1 and 2 of
the tender call notice dated 22.08.2015. The petitioner
would thus be entitled to be awarded the contract with
regard to the works at serial no.1 and 2 of the said
tender call notice, in accordance with the terms of the
tender call notice, which should be complied with
within six weeks from today. No order as to costs."
10. In Sudhir Kumar Singh (supra), the apex Court in paragraph-26
held as under:-
"26. It may be added that every case in which a
citizen/person knocks at the doors of the writ court for
breach of his or its fundamental rights is a matter
which contains a "public law element", as opposed to
a case which is concerned only with breach of contract
and damages flowing therefrom. Whenever a plea of
breach of natural justice is made against the State, the
said plea, if found sustainable, sounds in constitutional
law as arbitrary State action, which attracts the
provisions of Article 14 of the Constitution of India -
see Nawabkhan Abbaskhan v. State of Gujarat, (1974)
2 SCC 121 at paragraph 7. The present case is,
therefore, a case which involves a "public law
element" in that the petitioner (Respondent No.1 before
us) who knocked at the doors of the writ court alleged
breach of the audi alteram partem rule, as the entire
proceedings leading to cancellation of the tender,
together with the cancellation itself, were done on an
ex parte appraisal of the facts behind his back."
11. The order passed by this Court in M/s. Shree Ganesh Construction
& Others vs. State of Orissa & M/s. Sical Logistics Ltd. vs. Mahanadi
Coalfields Ltd. have been challenged before the Apex Court in SLP(C)
Nos. D41354/2016 & 28309/2017 respectively and the Apex Court
affirmed the order passed by this Court in the aforementioned cases.
In view of the principle of law decided by the Apex Court as well
as this Court, since the cancellation has been made without assigning any
reason and without giving opportunity of hearing to the petitioner, the
same cannot be sustained in the eye of law.
12. In such view of the matter, since the order of cancellation has been
passed by the tendering authority without giving opportunity of hearing to
the petitioner, the second tender call notice issued under Annexure-1, so
far it relates to the work under item no.13, as well as the orders of
cancellation under Annexures-10 and 11 cannot be sustained in the eye of
law and the same are liable to be quashed and are hereby quashed.
Needless to say, the recommendation made by the tendering authority to
approve the tender submitted by the petitioner, pursuant to 1st tender call
notice, should be accepted as expeditiously as possible, preferably within
a period of three weeks from today.
13. With the aforesaid observation and direction, the writ petition
stands disposed of.
(DR. B.R. SARANGI)
JUDGE
(G. SATAPATHY)
JUDGE
S.Sasmal
