Orissa High Court
Md. Azad Khan vs State Of Odisha And Another .... ... on 1 September, 2025
Author: Murahari Sri Raman
Bench: Murahari Sri Raman
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.20107 of 2025
Md. Azad Khan .... Petitioner
Mr.Jajati Keshari Khuntia, Advocate
-versus-
State of Odisha and another .... Opposite Parties
Ms.Aishwarya Dash, Addl. Standing Counsel
CORAM:
HON'BLE THE CHIEF JUSTICE
AND
HON'BLE MR.JUSTICE MURAHARI SRI RAMAN
ORDER
01.09.2025
Order No.
01. 1. Although the petitioner was adjudged as the highest bidder
in terms of the tender floated for removal of Eucalyptus trees, the
work order was not issued to the petitioner which constrained him
to file a representation on 11th July, 2025 but was served with the
letter No.1437 of the even date issued by the Project Director,
Watershed, Dhenkanal by which the tender process was cancelled.
The petitioner submits that the moment he is declared as the highest
bidder, the authority cannot shirk his responsibility in issuing the
work order nor is permitted to whimsically cancel the tender
process, more particularly, on a same day when the petitioner
submitted a letter demanding the issuance of the work order.
2. It admits no ambiguity on a proposition of law that mere
participation in a tender or having declared as the highest bidder
does not create any legally enforceable right into a person. The
same can be fortified by a judgment of the Apex Court in Rajasthan
Housing Board and Another vs. G.S. Investments and Another
reported in 2007 (1) SCC 477 wherein the Apex Court in paragraph-
9 has observed as follows:-
"9. This being the settled legal position, the
respondent acquired no right to claim that the
auction be concluded in its favour and the High
Court clearly erred in entertaining the writ petition
and in not only issuing a direction for
consideration of the representation but also issuing
a further direction to the appellant to issue a
demand note of the balance amount. The direction
relating to issuance of the demand note for balance
amount virtually amounted to confirmation of the
auction in favour of the respondent which was not
the function of the High Court."
2.1. The aforesaid proposition of law is restated and reiterated
in case of Maa Binda Express Carrier and Another Vs. Northeast
Frontier Railway And Others reported in 2014 (3) SCC 760
wherein it is observed as follows:
"8. The scope of judicial review in matters relating
to award of contract by the State and its
instrumentalities is settled by a long line of decisions
of this Court. While these decisions clearly
recognize that power exercised by the Government
and its instrumentalities in regard to allotment of
contract is subject to judicial review at the instance
of an aggrieved party, submission of a tender in
response to a notice inviting such tenders is no more
than making an offer which the State or its agencies
are under no obligation to accept. The bidders
participating in the tender process cannot, therefore,
insist that their tenders should be accepted simply
because a given tender is the highest or lowest
depending upon whether the contract is for sale of
public property or for execution of works on behalf
of the Government. All that participating bidders are
entitled to is a fair, equal and non-discriminatory
treatment in the matter of evaluation of their
tenders. It is also fairly well-settled that award of a
contract is essentially a commercial transaction
which must be determined on the basis of
consideration that are relevant to such commercial
decision. This implies that terms subject to which
tenders are invited are not open to the judicial
scrutiny unless it is found that the same have been
tailor made to benefit any particular tenderer or
class of tenderers. So also the authority inviting
tenders can enter into negotiations or grant
relaxation for bona fide and cogent reasons
provided such relaxation is permissible under the
terms governing the tender process".
3. A conjoint reading of law in the above noted decision
leads to an inescapable conclusion that mere participation in the
tender process or having quoted the highest price does not create a
vested right into a participant to have the order issued in its favour
nor can compel the authority to conclude the auction process. It is
open to the authorities whether to cancel the contract or not and
once the decision is taken which does not appear to be whimsical,
arbitrary or irrational, such decision is not susceptible to be
interfered with in exercise of power of judicial review enshrined
under Article 226 of the Constitution of India.
3.1. We have seen the letter dated 11th July, 2025 issued by
the Project Director, Watershed, Dhenkanal, being the subject
matter of challenge in the instant writ petition wherefrom the reason
has been assigned for cancelling the entire tender process. It is
indicated during the tender process that two members of the tender
committee could not attend till the final tender process. It was
further highlighted that some issues were raised with regard to the
publication of a tender notice through paper advertisement and in
order to eradicate any objection, it was unanimous decision by the
committee to cancel the tender process.
3.2. Since the petitioner has deposited the EMD in terms of
the decision taken by the defective tender committee, he was also
requested to receive the said amount from the office on any working
day. It appears that the EMD was deposited on 30th June, 2025 and
the said letter of cancellation was issued in a close proximity of
time, i.e., 11th July, 2025, and, therefore, we do not find that there is
any unreasonable withholding of the said amount by the said
authority attracting any penal or compensation to be awarded in
favour of the petitioner.
3.3. We, thus, do not find any infirmity in the decision of the
authority in cancelling the said tender process.
4. The writ petition sans merit, and as such, the same stands
dismissed. However, it is open to the petitioner to approach the
authority for return of the EMD amount as directed in terms of the
impugned notice.
(Harish Tandon)
Chief Justice
(M.S. Raman)
Judge
Bichi
Signed by: BICHITRANANDA SAHOO
