Orissa High Court
M/S. Meher Agencies vs State Of Odisha on 18 February, 2025
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
Signature Not Verified
Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 21-Feb-2025 16:27:30
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 4540 OF 2025
(An application under Articles 226 and 227 of the Constitution of India)
*****
M/s. Meher Agencies, Nuapada ...... Petitioner
-Versus-
1. State of Odisha, represented through
its Commissioner-Cum-Secretary, Fisheries
and Animal Resources Development Department,
Odisha, Bhubaneswar.
2. Directorate of Animal Husbandry and
Veterinary Services through its Director,
Mangalabag, Dist- Cuttack
....... Opp. Parties
Advocates appeared:
For Petitioner : Mr. Adwitiya Satpathy, Advocate
For Opp. Parties : Mr. Swayambhu Mishra,
Additional Standing Counsel
CORAM :
MR. JUSTICE K.R. MOHAPATRA
& MR. JUSTICE SANJAY KUMAR MISHRA
------------------------------------------------
Heard and disposed of on 18.02.2025
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JUDGMENT
By the Bench;
1. This matter is taken up through hybrid mode.
W.P.(C) No. 4540 OF 2025
Signed by: SASANKA SEKHAR SATAPATHY
Location: HIGH COURT OF ORISSA CUTTACK
Date: 21-Feb-2025 16:27:30
2. Petitioner in this writ petition prays for a direction to
strike down Clauses 3.1, 5.2.6.1 and 5.2.6.2 of Detailed Tender
Call Notice (DTCN) vide bid reference No.01/2024-25, DAHVS
Veterinary Care Equipment/Consumables/Ancillaries dated 30th
January, 2025 (Annexure-2).
3. Mr. Satpathy, learned counsel for the Petitioner submits
that Petitioner is a registered dealer, distributor, whole-seller
and supplier of Veterinary medicines, drugs, chemicals,
veterinary equipments and instruments. The Director,
Directorate of Animal Husbandry and Veterinary Services,
Government of Odisha- Opposite Party No. 2 came up with
aforesaid DTCN under Annexure-2. But the impugned Clauses
of the DTCN prevent the Petitioner to participate in the tender
process. He drew attention to Clause 3.1 of the Tender
Schedule. Clause 3 thereof deals with Earnest Money Deposit
(EMD), which reads as under.
"3.1.(3) BID Details
3. Earnest Bidders except MSE/ OSME & START-
Money Upsare required to deposit EMD of
Deposit Rs.1,00,00,000/-(Rupees One crore) as
per Rule 212(1) of OGFR 2023 and vide
MSME Department Notification
No.566/MSME dt.24.01.2024 as bid
security.
The OSME/local MSE & Start-Ups of
Odisha are exempted to furnish the EMD.
To claim exemption the bidders must have
to submit the supporting documents."
W.P.(C) No. 4540 OF 2025
Signed by: SASANKA SEKHAR SATAPATHY
Location: HIGH COURT OF ORISSA CUTTACK
Date: 21-Feb-2025 16:27:30
4. It is his submission that the bidders except MSE/OSME
and START-Ups are required to deposit EMD of
Rs.1,00,00,000/-(Rupees One crore) as per Rule 212(1) of the
Odisha General Financial Rules, 2023 (for brevity, 'OGFR')
and vide MSME Department Notification No.566/MSME dated
24th January, 2024, the Petitioner is not a MSE/OSME and
START-Up unit. Thus, it is not exempted from depositing the
EMD and is required to make a deposit of Rs.1,00,00,000/-
(Rupees One crore) as EMD along with the tender document.
5. He further submits that Clause 5.2 of DTCN deals with
Pre-Qualification of Bidders. Clauses 5.2.6.1 and 5.2.6.2 thereof
are relevant for consideration, which read as under.
"5.2.6.1. Proof of annual average turnover
(Manufacturers/Importer) of Rs.5.50 Cr(Five
Crore Fifty Lakh) or more in any three (3)
consecutive financial years during 2018-19,
2019-20, 2020-21, 2021-22, 2022-23 certified by
the Chartered Accountant mentioning the UDIN
as per the format at Format T8. The turnover for
Odisha SME will be relaxed by 90% that
applicable to normal bidder as per MSME Deptt.
Notification No 566 dt 24.01.2024.
5.2.6.2. The Bidder (manufacturer, supplier,
distributor, importer) must have 3 (three) years'
experience in supplying Veterinary equipment
and instruments of its own manufacturing or
reputed manufacturers of National level to
Central & State Government/ semi Govt.
organizations, PSUs with annual average worth
of Rs.4.50 Cr. or more in the any three (3)
financial years during 2018-19, 2019-20, 2020-
21, 2021-22, 2022-23. The Bidders are required
to submit the proof of supply i.e. purchase order
W.P.(C) No. 4540 OF 2025
Signed by: SASANKA SEKHAR SATAPATHY
Location: HIGH COURT OF ORISSA CUTTACK
Date: 21-Feb-2025 16:27:30
and the copy of invoice. The Odisha SME are
fully exempted from past work experience criteria
as per MSME Deptt. Notification No.566 dt.
24.01.2024."
6. It is his submission that the Clause 5.2.6.1 makes it clear
that bidders like Petitioner should have annual average turnover
of Rs.5,50,00,000/- (Rupees Five Crore Fifty Lakh) or more in
any three consecutive financial years during 2018-19, 2019-20,
2020-21, 2021-22 and 2022-23. Likewise, as per requirement of
Clause No.5.2.6.2 of DTCN, the bidder must have three years'
experience in supplying veterinary equipments and instruments
of its own manufacturing or reputed manufacturers of National
Level to Central and State Government/Semi Government
Organizations, PSUs with annual average worth of Rs.4.50
crore or more in any three financial years, as above. Thus, by
introducing these Clauses in DTCN, the Tender Inviting
Authority did not leave level playing field for the bidders like
the Petitioner. Lot of intended bidders like the Petitioner will
be deprived of submitting their bids complying with the
aforesaid bid conditions. He, therefore, submits that the
aforesaid clauses are arbitrary and unreasonable and need to be
struck down. He further submits that as per Rule 212 (1) of
OGFR, the EMD should be within 2% to 5% of the estimated
value of the goods to be procured. In the DTCN, no such
amount has been stated. Thus, the authorities arbitrarily fixed an
EMD at Rs.1,00,00,000/-(Rupees One crore) and introduced
W.P.(C) No. 4540 OF 2025
Signed by: SASANKA SEKHAR SATAPATHY
Location: HIGH COURT OF ORISSA CUTTACK
Date: 21-Feb-2025 16:27:30
unreasonable conditions as per Clause 5.2.6.1 and 5.2.6.2,
which are liable to be struck down.
7. Mr. Mishra, learned Additional Standing Counsel submits
that in W.P.(C) No.1110 of 2025 (M/s. Winners Pharma,
Cuttack Vs. State of Odisha and another), similar question came
up for consideration. In the said writ petition, this Court vide
judgment dated 16th January, 2025 taking into consideration the
ratio decided in the case of Tata Cellular Vs. Union of India;
(1994) 6 SCC 651 and Jagdish Mandal Vs. State of Odisha;
(2007) 14 SCC 517 along with other case laws, held that judicial
review of a tender condition can be made, if the Petitioner
satisfies the following pre-conditions, i.e.,
"(i) Whether the process adopted or decision
made by the authority is mala fide or
intended to favour someone;
(ii) Whether the process adopted or decision taken
is so arbitrary and irrational that the Court can
say: 'the decision is such that no responsible
authority acting reasonably and in
accordance with relevant law could have
reached', or
(iii) Whether public interest is affected."
None of the aforesaid conditions is satisfied in the instant case.
No mala fide against the Tender Inviting Authority is alleged by
the Petitioner in the instant case and it is not stated as to how the
W.P.(C) No. 4540 OF 2025
Signed by: SASANKA SEKHAR SATAPATHY
Location: HIGH COURT OF ORISSA CUTTACK
Date: 21-Feb-2025 16:27:30
impugned conditions are affecting public interest. Hence, the
writ petition merits no consideration and is liable to be
dismissed.
8. Heard learned counsel for the parties and perused the
materials on record, more particularly, the case of Jagdish
Mandal (supra), wherein the Hon'ble Supreme Court, while
dealing with the scope of interference in a tender, tender
conditions or contractual matters in exercise of power of
judicial review, held as under.
"...... Therefore, a court before interfering in
tender or contractual matters in exercise of
power of judicial review, should pose to itself the
following questions:
(i) Whether the process adopted or decision
made by the authority is mala fide or intended to
favour someone;
OR
Whether the process adopted or decision
made is so arbitrary and irrational that the court
can say: 'the decision is such that no responsible
authority acting reasonably and in accordance
with relevant law could have reached";
(ii) Whether public interest is affected.
If the answers are in the negative, there should be
no interference under Article 226. Cases
involving blacklisting or imposition of penal
consequences on a tenderer/contractor or
distribution of State largesse (allotment of
sites/shops, grant of licenses, dealerships and
franchises) stand on a different footing as they
may require a higher degree of fairness in
action."
W.P.(C) No. 4540 OF 2025
Signed by: SASANKA SEKHAR SATAPATHY
Location: HIGH COURT OF ORISSA CUTTACK
Date: 21-Feb-2025 16:27:30
9. Thus, as per the settled position of law, this Court has a
very limited scope of judicial review in tender and contractual
matters. The case of the Petitioner has to be considered keeping
in mind the ratio decided, as stated above.
10. Mr. Satpathy, learned counsel for the Petitioner submits
that Rule 212(1) of OGFR clearly stipulates that EMD should be
2% to 5% of the estimated value of the goods to be procured. In
the instant case, no estimated value of the goods to be procured
has been stated in the DTCN. He, therefore, submits that the
tender condition requiring a bidder to deposit EMD of
Rs.1,00,00,000/-(Rupees One crore) is illegal and arbitrary. No
specific allegation is made in the writ petition stating as to how
such tender condition is so arbitrary or irrational that a
responsible tender authority like the Opposite Party No. 2 in the
instant case could have reasonably and in accordance with law
introduced it as an essential condition. It is only stated that EMD
is not in consonance with Rule 212 (1) of the OGFR, 2023.
11. In a particular tender call notice, it is not always possible
to state the estimated value of the goods to be procured, as in
the instant case. However, keeping in mind the requirement of
the goods to be procured, EMD of Rs.1,00,00,000/-(Rupees One
crore) has been fixed by the Tender Inviting Authority. That
itself cannot be said to be arbitrary or mala fide unless a specific
allegation is attributed. In the instant case, no such allegation
has been made or material produced to appreciate the allegation.
On a conspectus of the relevant tender conditions vis-à-vis the
W.P.(C) No. 4540 OF 2025
Signed by: SASANKA SEKHAR SATAPATHY
Location: HIGH COURT OF ORISSA CUTTACK
Date: 21-Feb-2025 16:27:30
condition regarding deposit of EMD, it does not appear to be
unreasonable.
12. A feeble argument is made that bidders like the Petitioner
will be deprived of participating in the tender process and there
will be no fair competition or level playing field for the bidders
like the Petitioner. As yet, the bids submitted by the intending
bidders have not been opened. Thus, it is very difficult at this
stage to accept the submission of Mr. Satpathy, learned counsel
for the Petitioner, more particularly, in absence of any material
in support of the same. There is also no material on record to
come to a conclusion that imposition of condition is mala fide
and unreasonable. The Tender Inviting Authority, applying its
mind and taking into consideration the requirements, fixed
certain conditions in the tender, which cannot be said to be
illegal, arbitrary or mala fide in absence of any material. Only
because the Petitioner is a registered dealer, distributor, whole-
seller and supplier of Veterinary medicines, drugs, chemicals,
veterinary equipments and instruments, that itself would not
make the Petitioner entitled or eligible to participate in the
tender process for procurement of materials it is dealing with,
like the instant one, if it does not satisfy the tender conditions in
the DTCN.
12.1 Further, the conditions so imposed cannot be said to be
against the public interest. No such allegation or averment is
also made in the writ petition.
W.P.(C) No. 4540 OF 2025
Signed by: SASANKA SEKHAR SATAPATHY
Location: HIGH COURT OF ORISSA CUTTACK
Date: 21-Feb-2025 16:27:30
13. In that view of the matter, the writ petition merits no
consideration and is accordingly dismissed. In the
circumstances, there shall be no order as to costs.
Urgent certified copy of the order shall be supplied as per
rules, if applied for.
(K.R. Mohapatra)
Judge
(S.K. Mishra)
Judge
Orissa High Court, Cuttack,
Dated 18th February, 2025/Kanhu
W.P.(C) No. 4540 OF 2025
