Canceling the previous tender without providing opportunity to the petitioner becomes bad: Odisha High Court

IN THE HIGH COURT OF JUDICATURE FOR ORISSA AT CUTTACK W.P.(Civil) No.2293 of 2020 Maa Jagatjanani Infrastructure Pvt. Ltd. represented through its Managing Director Sri Ashok Kumar Roy House No.589 Ward No.25 at Raigadia Street Main Road Jeypore Koraput & another. … … … Petitioners versus Executive Officer Jeypore Municipality At Post Jeypore Dist. Koraput. … … … Opp. Party Advocate(s) who appeared in this case through Video Conferencing mode: For Petitioners For Opp.Party M s.Pravakar Behera. : Mr. P.C.Chhinchani. HONOURABLE THE CHIEF JUSTICE MR. MOHAMMAD RAFIQ HONOURABLE MR. JUSTICE BISWANATH RATH 10.12.2020 JUDGMENT Per: Biswanath Rath J. This is a writ petition filed by the petitioners a private firm seeking interference of this Court in the tender notice dated 06.01.2020 at Annexure 4 further also praying for issuing writ of mandamus to the opposite party to allow the petitioners to execute the work under Annexure 2 series and Annexure 3 series. 2. Short background involving the case is that opposite party floated tender notice No.2912 dated 08.08.2018 inviting percentage rate bids on online mode for execution of certain works as specified in the table therein. It is contended that in the tender notice dated 08.08.2018 bids from eligible contractors were invited for execution of 22 numbers of works involving Jeypore Municipality reference of which is made through Annexure 1. Further plea goes to disclose that the petitioner no.1 participated in the tender and its bid found to be competitive and responsive petitioner no.1 was awarded with the work on deposit of initial security in respect of all works specified in the table. An agreement for execution of work in question was signed involving 22 numbers of works. The petitioner no.1 as required also deposited the E.M.D. as well as initial security amount against each work before execution of the work. It is here alleged that the opposite party has taken back the work order in respect of Item Nos.1 3 16 and 19 involving improvement of road Chhiliguda Jayanagar improvement of road from N.H.26 to N.H.26 Dangaguda improvement of road from Ganganagar to Power Junction on the ground that the estimated cost in respect of these three works was since more than fifteen lakhs for which approval of the Collector Koraput was necessary. Withdrawing the work order as it appears the petitioner no.1 was advised to wait till the approval of the higher authority is obtained. It is further contended that so far as work in respect of Item Nos. 2 8 11 12 and 13 involving improvement of road at Mahavir Lane at Jaynagar improvement of road from main road to Chandanbado street via Nilasaila improvement of road at Palio Sahi improvement of road at Dhoba Sahi and lastly improvement of road at Praharajbabu residence at Jayanagar for which work orders though have been issued but these works could not be executed due to site clearance and for not handing over of the site by the opposite party. It is further contended that petitioner no.1 has deposited E.M.D. as well as initial security deposit which is equal to 1 % of the estimated cost of the tender with the opposite party but no work order is issued for want of approval of the higher authority in respect of Item Nos. 1 3 16 and 19 as on the date of filing of the writ petition. It is stated that out of 22 numbers of works petitioners claimed to have completed all other works except work under Item Nos.1 3 16 and 19. It is claimed that while the petitioner no.1 was continuing in his efforts he came to notice that the opposite party has already cancelled the tender in respect of above items but without any notice. Petitioner alleged that it has also come to notice that opposite party in the meanwhile even invited fresh tender in respect of work including some other works involving tender call notice entering into a tender call notice dated 06.01.2020. Challenging the fresh tender call notice vide Annexure 4 Sri P.Behera learned counsel for the petitioners is no reason attributed the petitioner in cancellation of the earlier tender notice in respect of rest of the works. Learned counsel for the petitioners thus claimed that such cancellation is arbitrary and unreasonable. It is in the above premises Sri Behera learned counsel for the petitioners contended that the opposite party is going to fresh tender without having any valid reason depriving the petitioners from completing the work involved therein becomes bad. It is also alleged that the fresh tender notice has been issued in haste and there is no intimation of estimated cost in the list of work and as such tender notice impugned herein otherwise also becomes contrary to codal provision of the Government. It is also urged that canceling the previous tender without providing opportunity to the petitioner becomes bad. Taking this Court to the short note of submission on reiteration of his stand already taken hereinabove learned counsel for the petitioners again on the same premises prayed this Court for exercise the power of judicial review to prevent the arbitrary action of the opposite party in cancelling the work order as well as issuing fresh tender notice and thereby granting appropriate relief to the petitioner. Relying on a decision in the case of Nobel Resources Ltd. Vrs. State of Orissa & Anr. reported in AIR 2007 SC 119 learned counsel for the petitioners attempted to take support of the judgment involved hereinabove to the case of the petitioners. while denying the allegation of the petitioners in the writ petition opposite party also raised serious objection to the claim made by the petitioners on the premises that the writ petition is filed on deliberate suppression of material facts. Opposite Party in the counter affidavit also contended that it is a matter of fact that petitioners were issued with some work orders in respect of work at Item Nos.2 8 11 12 and 13 but however the work order was cancelled for the reason of non execution of the said work by the petitioners. The allegation that there was no site clearance involved therein and the allegation that the site was not handed over to the petitioner is flatly denied. Opposite party rather alleged that for the 4. Counter affidavit has been filed by the opposite party inter alia petitioners not starting work in respect of items involved herein the opposite party issued several notices and reminders to start work. Finding failure to response to the notices as well as reminders of opposite party the opposite party was constrained to cancel the work orders involved. It is alleged that the tender notice contained specific time for finishing of work involved therein. Petitioners did not remain abided by the time stipulation in the previous tender notice compelling the opposite party to cancel the work order and taking decision to go ahead with fresh tender at Annexure 4 is as a result of such decision. Sri Chhinchani learned counsel appearing for opposite party on reiteration of above submitted that the petitioners have not come to this Court with clean hands and the writ petition is full of suppression of material facts involving the situation leading to cancellation of previous tender for unfinished works as a consequence requiring the opposite party to go ahead with fresh tender notice involved in Annexure 4. It is in the above premises Sri Chhinchani learned counsel for the opposite party prayed this Court for dismissing the writ petition for having no substance. Considering the rival contentions of the parties this Court finds petitioners have filed the writ petition assailing the fresh tender notice vide Annexure 4 with specific pleading that it was the L 1 in the previous bid process in respect of 22 numbers of works work orders have been issued in its favour part of work it could complete and part of work it could not complete for the reason of putting the work to halt by the opposite party on the premises of seeking approval of the Collector being the higher authority for involvement of higher amount involved therein. It is also claimed that petitioners could not go ahead with work for no handing over the site involved therein to the petitioners. In response to which the opposite party took a clear stand that the allegation that opposite party stalled the work against some of the work orders for want of approval of the Collector being the higher authority and that the sites involved therein were not allotted in favour of the petitioner are all false and baseless. To support its stand the opposite party even on affidavit submitted that finding the petitioners not giving any progress to the work involved involving particular work orders the petitioner was noticed several times to show the progress with support of material documents. Not only that on the allegation of the petitioners that there has been no cancellation of the tender notice and no such communication is made to the petitioners further cancelation if any in absence of providing natural justice remains contrary to law this Court here finds the opposite party while disputing such claim through series of correspondences from running page 69 to 72 and again page 74 to 77 has been able to establish that not only there has been notices as well as reminders to the petitioners to work in terms of the work order in respect of work orders have been cancelled but there has been orders cancelling the work orders followed with a direction to go ahead for fresh tender as appearing at Annexure 4. For the material support to the case of the opposite party this Court finds there has been lot of exercises by the opposite party including opportunity being provided to the petitioners to complete the work in terms of the work order. It is a clear case where petitioner not only worked contrary to terms in tender notice but even did not show improvement in spite of being put to notice and the writ petition again has been filed with clear suppression of material facts. Further as fresh tender notice having been already issued to work out the remaining work along with some other works by the opposite party in the meantime for valid reasons of the competent authority this Court finds there is no scope for this Court for reviewing such administrative decision of the public authority in exercise of power under Article 226 of the Constitution of India. 6. In the result the writ petition stands dismissed for having no merit with vacation of interim order dated 22.01.2020. In the circumstances there is no order as to cost. As restrictions are still continuing due to the pandemic Covid 19 learned counsel may utilize the soft copy of this judgment available in the High Court’s Official website or print out thereof at par with certified copies in the manner prescribed vide Court’s Notice No.4587 dated (MOHAMMAD RAFIQ) JUDGE CHIEF JUSTICE 25.03.2020. Orissa High Court Cuttack The 10th day of December 2020 sks. 

Summary: This Judgment was delivered by the single bench comprising Hon’ble Chief Justice Mr. Mohammad Rafiq &amp; Hon’ble Justice Biswanath Rath of Odisha High Court in the matter of Pravakar Behera v. P.C.Chhinchani, [W.P.(Civil) No.2293 of 2020]. This is a writ petition filed by the petitioners, a private firm; seeking interference of this Court in the tender notice dated 06.01.2020 at Annexure-4 further also praying for issuing writ of mandamus to the opposite party to allow the petitioners to execute the work under Annexure-2 series and Annexure-3 series. Short background involving the case is that opposite party floated tender notice No.2912 dated 08.08.2018 inviting percentage rate bids on online mode for execution of certain works as specified in the table therein. It is contended that in the tender notice dated 08.08.2018, bids from eligible contractors were invited for execution of 22 numbers of works involving Jeypore Municipality, reference of which is made through Annexure-1. Further plea goes to disclose that the petitioner no.1 participated in the tender and its bid found to be competitive and responsive, petitioner no.1 was awarded with the work on deposit of initial security in respect of all works specified in the table. An agreement for execution of work in question was signed involving 22 numbers of works. The petitioner no.1, as required, also deposited the E.M.D. as well as initial security amount against each work before execution of the work. It is here alleged that the opposite party has taken back the work order in respect of Item Nos.1, 3, 16 and 19, on the ground that the estimated cost in respect of these three works was since more than fifteen lakhs for which approval of the Collector, Koraput was necessary. Withdrawing the work order, as it appears, the petitioner no.1 was advised to wait till the approval of the higher authority is obtained. It is stated that out of 22 numbers of works, petitioners claimed to have completed all other works except work under Item Nos.1, 3, 16 and 19. It is claimed that while the petitioner no.1 was continuing in his efforts, he came to notice that the opposite party has already cancelled the tender in respect of above items but without any notice. Petitioner alleged that it has also come to notice that opposite party in the meanwhile even invited fresh tender in respect of work including some other works involving tender call notice entering into a tender call notice dated 06.01.2020. Challenging the fresh tender call notice vide Annexure-4, Sri P.Behera, learned counsel for the petitioners contended that there is no reason attributed to the petitioner in cancellation of the earlier tender notice in respect of rest of the works. Learned counsel for the petitioners thus claimed that such cancellation is arbitrary and unreasonable. It is in the above premises, Sri Behera, learned counsel for the petitioners contended that the opposite party is going to fresh tender without having any valid reason depriving the petitioners from completing the work involved therein becomes bad. It is also alleged that the fresh tender notice has been issued in haste and 4 there is no intimation of estimated cost in the list of work and as such tender notice, impugned herein, otherwise also becomes contrary to codal provision of the Government. It is also urged that canceling the previous tender without providing opportunity to the petitioner becomes bad. After examining all the submissions, arguments and evidences forwarded by the councils, the hon’ble HC observed that, “In the result, the writ petition stands dismissed for having no merit with vacation of interim order dated 22.01.2020. In the circumstances there is no order as to cost. As restrictions are still continuing due to the pandemic Covid-19, learned counsel may utilize the soft copy of this judgment available in the High Court’s Official website or print out thereof at par with certified copies in the manner prescribed, vide Court’s Notice No.4587 dated 25.03.2020.”