AKHILA KUMAR MOHAPATRA Vs. STATE OF ORISSA

JUDGEMENT

(1.) This writ petition has been filed with a prayer to quash the decision taken by opposite party No.3-Superintending Engineer, Central Circle (R & B), Bhubaneswar, District : Khurda under Annexure-10 by which he rejected the bid and cancelled the tender in respect of the work construction of 33 seated Women s Hostel for Government Women s College at Puri for the year 2010-11 invited vide Tender Call Notice No.9 dated 10.01.2011. Further prayer of the petitioner is to direct opposite party Nos.1 to 3 to issue work order in his favour in respect of the said work.

(2.) The petitioner s case in a nut-shell is that he is a B Class Contractor. A tender call notice bearing No.9 dated 10.01.2011 (Annexure-1) was issued by opposite party No.3 inviting online tenders from the eligible registered contractors for execution of the work in question. Pursuant to such tender call notice, petitioner along with others submitted their bids through e-tender process on 27.01.2011. The technical bid of the petitioner was treated as non-responsive on the sole ground that he had furnished wrong registration number of one of the four trucks which were supposed to be hired for execution of the work in question. The petitioner was intimated about such rejection through SMS on 10.02.2011. The petitioner challenged the said action of the opposite party No.3 in W.P.(C) No.3230 of 2011 and this Hon ble Court after hearing the parties and also taking note of the instructions supplied by opposite party No.3 to the learned Additional Government Advocate allowed the writ application by setting aside the decision of opposite party No.3 in declaring the technical bid of the petitioner as non-responsive and consequently rejecting the same. This Court further directed that the technical bid of the petitioner shall be evaluated vis- -vis opposite party No.4 so also the financial bid and thereafter appropriate decision thereon shall be taken. After getting the said order of this Court, opposite party No.3 vide letter dated 23.03.2011 informed the petitioner that his technical bid was responsive and accordingly called upon him to attend his office for opening of the price-bid for the work on 25.03.2011. The petitioner attended the office of opp. party no.3 for opening of the price bid at the scheduled place and time and upon opening of the price bid, the petitioner was found to be the lowest bidder i.e. L-I. The financial bid opening summary was also uploaded to the e-tendering System of Government of Orissa. Since after a lapse of considerable time, the opposite party authorities did not communicate their decision on the bid and the petitioner received information from a reliable source that opposite party No.4 was likely to be allotted with the work in question, he once again approached this Court by filing a writ petition bearing W.P.(C) No.12329 of 2011. In the counter affidavit filed in the said writ petition, it was categorically stated that opposite party No.4 had initially quoted 9.1% excess over the corresponding estimated cost of the work and even the negotiated price quoted by him was still 5% excess, but the price quoted by the petitioner was 1.7% less. It further revealed from the said counter affidavit that in the affidavit submitted by opposite party No.4 before opening of the price bids, he expressed his willingness to execute the work at 2.8% less. The matter was referred to the Office of the Advocate General, Orissa for legal advice and the learned Advocate General vide letter dated 03.05.2011 advised them to finalise the tender ignoring the offer made by opposite party No.4. The said writ petition was disposed of on 19.07.2011 by this Court with a direction to complete the tender process within fifteen days from the date of the order. Thereafter, opposite party No.3 by a letter dated 11.08.2011 published in the official website of the Government of Orissa, informed all the concerned regarding the rejection of the bids and cancellation of the tender under Clause 32 of the Detail Tender Call Notice. Hence, the present writ petition.

(3.) Mr. R.K. Rath, learned Senior Advocate appearing on behalf of the petitioner submits that the rejection of the bids and cancellation of the tender by a non-speaking order by taking recourse to Clause 32 of the Detail Tender Call Notice shows the vindictive attitude of the decision making authorities, who are bent upon to stand by their earlier decision to reject the bid of the petitioner and allot the work in favour of opposite party No.4 by any means. Thus, the tender has been cancelled without any rhyme or reason notwithstanding the fact that earlier rejection of the technical bid of the petitioner was set aside by this Court and the petitioner being the lowest bidder was entitled to get the work order. Opposite party Nos.1 to 3, who as responsible public servants are supposed to act in a fair manner, have joined their hands with opposite party No.4 and have resorted to Clause 32 of the Detail Tender Call Notice mechanically in an arbitrary manner in order to fulfil their dishonest intention. The impugned decision to reject the bids and cancel the tender at the final stage of the tender process is apparently unreasonable and the same also smacks of mala fide. Such a decision clearly shows the intention of opposite party Nos.1 to 3 to over reach the process of law and cause hindrance in the smooth administration of justice. The bidding authority was very much interested for opposite party No.4 and illegally cancelled the bid in question the moment he felt that in the present bidding process he may not be able to achieve his goal. The said action of the bidding authority cannot stand to the judicial scrutiny in any manner whatsoever particularly in view of the legal opinion obtained from the highest legal consultant of the State and the impugned cancellation of the tender also violates the constitutional rights of the petitioner to pursue his profession as a contractor guaranteed under Article 301 of the Constitution. The authorities are required to act in a non-partisan and fair manner which has been violated here. Hence, it is desirable in the interest of justice, equity and fair play to lift the veil in order to find out the mala fide intention of the executive behind the impugned administrative action and quash the same in exercise of the extraordinary jurisdiction conferred upon this Court under Article 226 of the Constitution.