Right to easement only applicable when it is a necessity and not by prescription or grant: The High Court of Odisha

 IN THE HIGH COURT OF ORISSA AT CUTTACK WRIT PETITIONNo.4500 OF 2021 An application under Articles 226 & 227 of the Constitution of India.) Petitioner Versus Chairman cum Managing Director MCL and others Advocate(s) appeared in this case: ….… Opposite Parties For Petitioner For Opposite Parties Mr. Sidheswar Mohanty Advocate Mr. Debaraj Mohanty Advocate For Opposite Party Nos.1 & 2) CORAM : THE CHIEF JUSTICE JUSTICE B.P. ROUTRAY JUDGMENT 4th June 2021 B.P. Routray J. 1. The Petitioner has challenged the technical qualification of Opposite Party No.3 to compete in the bid invited by Opposite Party Nos.1 and 2 for the work “Hiring of Pay Loaders for Mechanical transfer of Coal into Railway wagons at Siding No.VI & VII of Lakhanpur Area for a quantity of 3 83 25 000 Te.” W.P.(C) No.45021 2. The Petitioner is a joint venture company. He along with Opposite Party No.3 and others participated in the bidding process invited by Opposite Party Nos.1 and 2 i.e. Mahanadi Coal Fields Limitedvide Notice Inviting TenderNo.818 2020 657 dated 28th October 2020 for the work stated above. The eligibility criteria at Clause 8(A) prescribes as follows: “8. Eligibility Criteria: A. Work Experience: The bidder must have experience of works of similar naturevaluing 50% of the annualized estimated value of the work50% of the estimated value of the workput to Tender in any year consecutive 365 days) during last 7 years ending last day of month previous to the one in which bid applications are invited. “Annualised value” of the work shall be calculated as the “Estimated value Period of completion in Days x The value of executed works shall be given a simple weightage to bring them at current price level by adding 5% for each completed yearafter the end date of experience till the last day of month previous to one in which e Tender has been invited. The definition of similar work shall be as follows: Loading of coal any mineral soil ash stone rejects by into railway wagons Pay Loaders Excavators In respect of the above eligibility criteria the bidders are required to furnish the following information on line: W.P.(C) No.45021 I. Start date of the year for which work experience of bidder is to be considered for eligibility. II. Start date & end date of each qualifying experience similar nature). III. Work order Number Agreement Number of each IV. Name & address of Employer Work Order Issuing authority of each experience. V. Percentage share of each experience of the NIT the work experience certificate has been defined to the effect that the bidder must have experience of work of similar nature valuing 50% of the annualised estimated value of the work put to tender. As per calculation 50% of the annualised value of the estimated cost comes to W.P.(C) No.45021 Rs.4 18 31 738 . The work experience certificate of Opposite Party No.3 filed at Annexure 3 to the tune of Rs.6 00 72 502 is not matching with the work order submitted by Opposite Party No.3 which has been annexed under Annexure 3 series. Therefore the work experience certificate of Opposite Party No.3 is not a genuine document. 4. Opposite Party No.3 did not come to contest. 5. Opposite Party Nos.1 and 2 who are Tender Inviting Authorities have contested the case by filing their counter. They have refuted the case of the Petitioner by saying that Petitioner has not presented the correct facts in the writ petition. It is their case that Petitioner has submitted three work experience certificates to reveal his qualification in terms of Clause 8(A) of the NIT. The first certificate has been issued by M s.Shyam Metalics and Energy Limited showing work done experience by Opposite Party No.3 to the tune of Rs.6 00 72 502 and two other work showing value of Rs.2 73 91 960 and Rs.1 51 56 032 respectively by M s.Godavari Commodities Limited. 6. As complaint was received from the Petitioner a clarification to the genuineness of the certificate of Opposite Party No.3 was sought from the respective employers viz. M s.Shyam Metalics and Energy Limited and M s.Godavari Commodities Limited. Both the employers have clarified that the work experience of Opposite Party No.3 as mentioned in his certificate is correct. Thereafter the financial bid was opened wherein Opposite Party No.3 was found L 1 and Petitioner was found L 4. Therefore the offer of Opposite Party No.3 was accepted and Letter of Acceptancewas issued to him on 23rd February 2021. W.P.(C) No.45021 7. The entire issue as revealed from rival contentions of the parties is relating to the work experience certificate submitted by Opposite Party No.3 along with his bid document. Admittedly 50% of the annualised estimated value to qualify the bidder is amounting Rs.4 18 31 738 . This experience qualified value is much less than the experience value submitted by Opposite Party No.3 got from M s.Shyam Metalics and Energy Limited and M s.Godavari Commodities Limited as per the work experience certificate submitted by him in the bid. 8. The Petitioner submits that the work order issued by M s.Shyam Metalics and Energy Limited to Opposite Party No.3 for the period from 1st April 2019 to 31st March 2020 is for loading and shifting charges whereas the experience required by MCL is for loading charges only. Thus the Petitioner submits that the experience certificate issued by M s.Shyam Metalics and Energy Limited in favour of Opposite Party No.3 cannot be considered as a valid certificate in terms of the eligibility norms under the NIT. 9. This contention of the Petitioner does not appear to be factually correct. A perusal of the experience certificate of Opposite Party No.3 under Annexure 3 series) the document at Annexure D 2 to the counter and the clarification under Annexure E 2 series reveals that the experience is regarding loading of raw materials only. In those documents nowhere have the shifting charges been mentioned. Those documents speak of loading charges @Rs.10 per MT plus GST. Therefore we do not see any flaw in the tender process as alleged by Petitioner against Opposite Party No.3. Apart from that as seen from the W.P.(C) No.45021 price bid under Annexure I 2 to the counter Petitioner stood L 4 and Opposite Party No.3 stood L 1 in terms of which the price difference is more than Rs.9 crores. 10. The next contention of the Petitioner is that the clarification issued by M s.Shyam Metalics and Energy Limited was on 12th December 2020 whereas the price bids were opened on 7th December 2020. There is no merit in this contention in view of the clear averment of Opposite Party No.2 in their reply that after ascertaining the genuineness of the work experience certificate from the concerned employer a decision was taken by the Tender Committee. 11. The Supreme Court in Jagdish Mandal v. State of Orissa14 SCC 517 held that: in mind. A contract to prevent arbitrariness “22. Judicial review of administrative action is irrationality unreasonableness bias and mala fides. Its purpose is to check whether choice or decision is made “lawfully” and not to check whether choice or decision is “sound”. When the power of judicial review is invoked in matters relating to tenders or award of contracts certain special features should be is a commercial tenders and awarding transaction. Evaluating contracts are essentially commercial Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest courts will not in exercise of power of judicial review interfere even if a procedural aberration or error in assessment or prejudice to a tenderer is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest or to decide contractual disputes. The tenderer or W.P.(C) No.45021 contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers imaginary grievances wounded pride and business rivalry to make mountains out of molehills of some technical procedural violation or some prejudice to self and persuade courts to interfere by exercising power of judicial review should be resisted. Such interferences either interim or final may hold up public works for years or delay relief and succour to thousands and millions and may increase the project cost manifold. 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 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” If the answers are in the negative there should be no interference under Article 226. Cases involving blacklisting or imposition of penal tenderer contractor or consequences on a distribution of State largesse stand on a different footing as they may require a higher degree of fairness in action.” Whether public interest is affected. 12. In light of the settled legal position as explained by the Supreme Court in the aforementioned decisions there is no merit in the W.P.(C) No.45021 contentions of the Petitioner. Accordingly the writ petition is dismissed. There shall be no order as to costs. 13. As the restrictions due to resurgence of COVID 19 situation are continuing learned counsel for the parties may utilize a printout of the order available in the High Court’s website at par with certified copy subject to attestation by the concerned advocate in the manner prescribed vide Court’s Notice No.4587 dated 25th March 2020 as modified by Court’s Notice No.4798 dated 15th April 2021. Judge B.P. Routray) Chief Justice 4th June 2021 B.K. Barik Secretary W.P.(C) No.45021 

Summary: The right to easement can only be availed in cases when it is a necessity and not when there are other options available to the petitioner. A bench of the High Court of Odisha consisting of Chief Justice Dr. S. Muralidhar and Justice B.P. Routray passed a judgement in the case of Hrudananda Biswal v the Union of India [W.P. (C) No.6675 of 2003] on 31st May 2021 addressed right to easement. The petitioner, Hrudananda Biswal, was aggrieved by the refusal by South Eastern Railways, Kolkata to grant him the right to passage through railway land to gain access to a public road from his property and therefore filed a writ petition in 2003. The petitioner states that he got building permission from the Bhubaneswar Development Authority for constructing a six story building on his property. However according to the petitioner in 1990, while construction work was taking place, the railway authority obstructed him by saying that the land between his property and the public road belonged to them and could not be used by him to transport materials to the construction site. As a result of this the petitioner pleaded before the court that his right to easement was being compromised by the railway. The railways countered that the construction of a multi-storied building on the petitioner’s plot with its entrance facing the railway land would block the VIP entrance to Bhubaneshwar Platform 1 and cause a security hazard. Furthermore it was pointed out that the petitioner’s contractor could provide him with an alternate path to the public road via the plot adjacent to the petitioner’s plot on the northern side. The court found that since there was a satisfactory alternate approach road to the petitioner’s plot so stated there was no denial of access to the mentioned plot and was furthermore satisfied with the railways explanation of a possible security threat. The case of Bacchaj Nahar v. Nilima Mandal [AIR 2009 SC 1103A] was cited where it was held that “an owner seeking any relief relating to an easementary right shall have to plead and prove the nature of easement, manner of acquisition of the easementary right, and the manner of disturbance or obstruction to the easementary right” and that “The pleadings necessary to establish an easement by prescription, are different from the pleadings and proof necessary for easement of necessity or easement by grant”.