CHITTARANJAN MISHRA Vs. STATE OF ODISHA AND OTHERS

JUDGEMENT

(1.) The petitioner is a transport contractor having valid transport license and belonging to rural area. He was awarded with the tender for transportation of food stuff for Mid Day Meal (MDM) in the year 2012-13 in the district of Khurda and successfully completed the same. The Collector-cum-Chairperson (MDM, Khurda)-opposite party no.2 issued a tender call notice on 29.02.2016 inviting sealed tenders from the intending registered transport contractors/agents having valid agent license/common carrier license for engagement of transporting agent under Mid-DayMeal Programme for transportation of rice from FCI point to School points for the year 2016-17. The tender documents, complete in all respect along with required documents, were to be sent in sealed cover superscribed "sealed tender for undertaking transportation work of food grain (rice) under MDM programme-2016-17" addressed to the District Education Officer, Khurda by registered post/speed post. The last date of receipt of the tender documents was 21.03.2016 by 1.00 P.M. and date of opening of the tenders was 21.03.2016 at 5.00 P.M. in the office of the Addl. District Magistrate, Bhubaneswar. As per the terms and conditions of the tender notice, clause-10 requires that recent solvency certificate issued by the competent authority for Rs.50,00,000/- only, who applied for the whole district, and Rs.10,00,000/- only, who applied for one block, should be furnished by the tenders along with the tender paper. Clause-11 requires that earnest money deposit of Rs.1,00,000/- only per block (multiple of Rs.1,00,000/-, if applied for more than one block) in shape of bank drafts/postal savings pass book/bank pass book/NSC/term deposit duly pledged in favour of the District Project Management Unit (DPMU), MDM, Khurda should be furnished along with the tender paper. The security deposit has been enhanced from Rs.50,000/- to Rs.5,00,000/-; EM.D. has been enchanced from 26,500/- to Rs.1,00,000/- and solvency cost also has been enhanced from Rs.1,00,000/- to Rs.10,00,000/-. Being aggrieved by such terms and conditions of the tender documents, the petitioner has approached this Court by filing the present application.

(2.) Ms. Saswati Mohapatra, learned counsel for the petitioner strenuously urged that there was no rationality in the enhancement of EMD, solvency certificate and security deposits and, as such, the enhancement of deposits on different rates pursuant to the tender documents of the year 2016-17 is arbitrary, unreasonable and violative of Article 14 of the Constitution of India. By fixation of such conditions, the opposite parties have tried to eliminate small transporting contractors/agents and encourage the big contractors.

(3.) Mr. A.K. Pandey, learned Standing Counsel for the School and Mass Education Department vehemently urged that in order to ensure the smooth supply of MDM, the conditions of the tender documents have been changed and, as such, no illegality or irregularity can be said to have been committed by the authority. It is further urged that the past experience indicates that the small transport contractors used to leave the work at the midway, thereby causing the MDM scheme to suffer for non-supply of food stuff in time to the respective places. Therefore, no fault can be found with the authorities for changing the conditions. It is further urged that where the State acts reasonably, fairly and in public interest, no person can claim a fundamental right to carry on business with the Government. In that case, the scope of Court's interference is very restricted and limited and, as such, in the present case the Court should not interfere with the conditions stipulated in the notice inviting tenders. Furthermore, the Government and their undertakings must have a free hand to set the term of the condition of the tender in exercise of such powers and that once the conditions of the tender have been fixed the Court cannot interfere in exercise of judicial review. To substantiate his contention, reliance has been placed on the judgment of the Apex Court in Michigan Rubber (India) Limited v. State of Karnataka and others, 2012 8 SCC 216.