DEBENDRANATH BALBAT RAY Vs. STATE OF ORISSA

JUDGEMENT

(1.) In these two writ petitions, the petitioner and the opposite parties being the same and the facts involved being almost similar, both the writ petitions were heard together and are being disposed of by this common judgment.

(2.) In W.P. No. 11104/2003 the petitioner seeks quashing of Annexure-6, the office order issued by O.P. No. 5-the Executive Engineer, Rengali Right Canal Division No. II, Dhenkanal, forfeiting the earnest money deposited by him along with 'the tender submitted in respect of the work "Excavation of Gondia Branch Canal from RD 5.070 to 5.580 Km. of RBC of Rangali Irr. Project", as also Annexure-10, the communication of O.P. No. 1-the Commissioner cum-Secretaiy to the Government of Orlssa In the Department of Water Resources, rejecting the petitioner's representation dated 15-10-2003 to allow him to furnish performance security at the reduced rate as has been allowed to another contractor, namely, Shri S. C. Panda, as per Annexure-8. The petitioner has also prayed for Issue of a command by this Court to the opposite parties to allow the petitioner to furnish performance security at the reduced rate and also to execute the agreement to start with the work. In the other writ petition, i.e., W.P. No. 737/2004, in respect of another item of work, namely, "Excavation of Gondia Branch Canal from RD 5.790 to. 6.30 Km. of RBC of Rangali Irr. Project", the petitioner has made identical prayer to quash the respective annexures with regard to forfeiture of the earnest money deposit and the communication of O.P. No. 1 refusing to allow the petitioner to furnish reduced performance security besides seeking issue of command to the O.Ps. as prayed for in the other writ petition.

(3.) The brief facts as delineated in the writ petitins tend to reveal that O.P. No. 5-the Executive Engineer invited sealed tenders from intending eligible contractors for execution of eight items of .work of excavation of Gondia Branch Canal as per Tender Call Notice No. 1/2002-03 published in the Oriya daily 'The Samaj' on 4-11-2002 (Annexure-2). Thereafter O.P. No. 5 issued a corrigendum to the aforesaid Tender Call Notice, which was published in the Oriya daily 'Dharitri' on 14-12-2002 (Annexure-3), wherein the estimated costs of the works indicated in Annexure-2 were reduced. The petitioner purchased two sets of tender papers and submitted the same in respect of the works indicated at serial Nos. 6 and 7 of Annexure-3, namely, "Excavation of Gondia Branch Canal from RD 5.070 to 5.580 Km. of RBC of Rangali Irr. Project" and "Excavation of Gondia Branch Canal from RD 5.790 to 6.30 Km. of RBC of Rangali Irr. Project" quoting the rates at Rs. 1,81,16,939/- and Rs. 1,83,31,182/- as against the tender schedule amounts of Rs. 2,56,89,690/- and Rs. 2,59,96,505/-, respectively. Thereafter O.P. No. 5 by letter dated 16-1-2003 (Annexure-4) asked the petitioner to submit detailed analysis of the rates for each item of work. The petitioner in response to Annexure-4 by letter dated 30-1-2003 submitted detailed analysis of the rates and indicated therein that as the work-sites of both the works were quite adjacent, the petitioner would be able to manage execution of both the works with one establishment for which there would be 50% reduction in the establishment cost and proportionate reduction in over-head expenditure. O.P. No. 5 by letter dated 15-3-2003 (Annexure-5) intimated the petitioner about acceptance of the tenders submitted by him for both the works and requested the petitioner to attend his office on or before 26-3-2003 along with the documents mentioned therein to sign the necessary agreements for execution of the works. On 26-3-2003 the petitioner attended the office of O.P. No. 5 and submitted all the required documents except the performance security. Petitioner's request to allow him to sign the agreements without furnishing the performance security was, however, turned down. Consequently O.P. No. 5 by office order dated 2-4-2003 (Annexure-6) forfeited the earnest money deposited by the petitioner in respect of both the works. Challenging the aforesaid action of O.P. No. 5, the petitioner moved this Court in W.P. Nos. 4780 and 4781 of 2003 but this Court declined to interfere with the decision taken by O.P. No. 5 on the ground that as the petitioner while submitting tenders was aware of the condition stipulated in the Detailed Tender Call Notice ('DTCN' in short) regarding furnishing of performance security and having agreed to such condition and accepted the same, he could not be permitted to challenge the said condition. The writ petitions were accordingly dismissed by the judgment passed on 24-9-2003. According to the petitioner, after dismissal of the aforesaid writ petitions, he came to know that O.P. No. 1 had given concession in respect of furnishing performance security to some contractors, who were similarly placed like the petitioner, by reducing the amount of such security. In paragraph 14 of the writ petitions, the petitioner has specifically averred that such benefit/concession was given to one S. C. Panda, a superclass contractor, in respect of the work "Construction of Left Bank Canal of Rangali Irrigation Project from RD 33 Km. to 35.50 Km. with all structures-Package-7(B)" by allowing him to deposit performance security after deduction of 15% from the estimated cost of contract treating that to be the profit of the contractor, vide Annexure-8, on the basis of the recommendation made by the Chief Engineer and Basin Manager, Brahmani Left Basin, Samal, vide Annexure-7, which reads as follows :