Jagdish Mandal vs State Of Orissa And Ors. [Alongwith ...

3. The second Respondent, acting on behalf of the Water Resources Department, State of Orissa, invited tenders for "construction of Right Extension Main Canal from RD 8.01 km to 9.03 km including structures" by tender notice dated 9.11.2004. The estimated value of the work as per the tender schedule was Rs.1,69,10,506. In response, 17 tenders were received. The offer of the fifth respondent was the lowest (Rs. 1,22,99,099) and the offer of appellant (J. Mandal) was the second lowest (Rs.1,29,36,579). The Executive Engineer recommended the acceptance of the tender of fifth respondent.

5. The tenders were scrutinized and considered by the Project Level Committee ('Committee' for short) consisting of the Superintending Engineer, (Right Canal Circle), the Financial Advisor and Chief Accounts Officer (UIIP), the Executive Engineer (UIRC Division No. III), and the Assistant to Chief Engineer(UIIP). The details of their deliberations and recommendations are contained in the proceedings dated 24.3.2005. The Committee found that fifth respondent, the appellant (Jagdish Mandal) and Dinesh Kumar Panda were the first, second and third lowest tenderers. Having regard to the communication dated 14.3.2005 of the Superintendent of Post Offices not to take note of Term Deposit for Rs.1,70,000, the Committee held that the EMD submitted by fifth respondent was invalid and consequently his tender was 'non-responsive'. It therefore recommended the acceptance of the next lowest valid tender of Jagdish Mandal.

On coming to know about the rejection of his tender, the respondent herein filed W.P. No.4769/2005 seeking a direction to respondents 1 to 4 not to award to Jagdish Mandal or any other contractor, and a further direction for awarding the work to him. The Accepting Authority, however, accepted the offer of Jagdish Mandal and awarded the work to him under an agreement dated 18.4.2005.

8. The said communication dated 25.8.2005 was placed before the High Court with an affidavit of the Executive Engineer. When the matter came up on 29.8.2005, the High Court appears to have observed that the Department should prosecute the fifth respondent if he had dishonestly Page 0096 and fraudulently tried to secure a contract by utilizing a fake Post Office T.D. Account book. The Government Advocate, conveyed the said observations and instructed the Chief Engineer (UIIP), to lodge a complaint with the Police. Accordingly, the Executive Engineer lodged a complaint dated 9.9.2005 with the Officer-in-Charge of Junagarh Police Station, requesting appropriate action against fifth respondent. The Officer-in-Charge of Junagarh Police Station submitted an investigation report to the Advocate General stating that his investigation of the records showed that Rs.1,70,000 had been deposited by Narayan Mohanty on 6.12.2004 with the Sub-Post Master, Mukhiguda and a one year T.D. Account No.154120 was opened, and opined that the passbook was genuine. The said report was also placed before the High Court.

9. The High Court by its judgment dated 25.1.2006 allowed the writ petition filed by fifth respondent. It held:

The Committee, therefore, recommended that the next lowest tender, (submitted by Laxman Sharma) for acceptance. The accepting authority acting on the said recommendations, awarded the work to Laxman Sharma under an agreement dated 18.4.2005. Feeling aggrieved, Narayan Mohanty filed Writ Petition (C) No. 4768 of 2005 seeking a direction to the department not to award the said work to Laxman Sharma and for a further direction to award the work to him.

13. W.P. [C] No.4768/2005 was heard and disposed of along with W.P. (C) No. 4769 of 2005, by a common judgment. In the said judgment, the High Court only considered and dealt with the facts relating to the first stretch which was the subject matter of W.P. (C) No. 4769 of 2005. It did not consider the facts relating to the second stretch which was the subject matter of W.P. (C) No. 4768 of 2005. It proceeded on the assumption that the tender of fifth respondent in respect of the second stretch, was not accepted, solely as a consequence of non-acceptance of the fifth respondent's tender in respect of the first stretch. As the High Court set aside the decision of the Committee in regard to first stretch, it also set aside the decision of the committee regarding the second stretch. The said decision is challenged by Laxman Sharma.

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.

Conclusion:

31. In view of our findings on the points above, both these appeals are allowed and the judgment of the High Court in the two writ petitions is set aside. The writ petitions filed by the fifth respondent are rejected. Parties to bear respective costs.