DEEPAK TRADING COMPANY Vs. STATE OF ORISSA

JUDGEMENT

(1.) IN the present writ petition, the petitioner calls in question the action of opposite party No. 1 in issuing notice for termination of agreement with the petitioner and placing the indent and selecting the opposite party No. 3 to supply soya chunks for Bolangir district under Mid -Day Meal Programme (hereinafter called "MDM Programme") on the ground that the same is illegal and arbitrary.

(2.) BEREFT of unnecessary details, the short fact which gives rise to this writ petition is that the State Government had launched the MDM Programme for the school children throughout the State. This programme is being carried out under the control and supervision of Women and Child Development Department (opposite party No. 2). Under the MDM Scheme, the Government decided for supply of eggs for school children and for that purpose the guidelines were fixed wherein it, inter alia, stated that the Collector of respective districts would purchase eggs. Under the said programme, it was further decided by the Government for supply of soya chunks in case of non -availability of eggs. Instructions dated March 12, 2008 (annexure 2) provide for supply of soya chunks in addition to eggs or in addition to that where surplus fund was available. Pursuant to the Government instructions under annexure 2, opposite party No. 1 floated tender bearing No. 1612/DSWO dated June 9, 2008 (annexure 3) inviting competitive bids for supply of soya chunks for Bolangir district for the year 2008 -09. The said Tender Call Notice (for short, "TCN") contained various conditions and eligibility criteria with regard to the persons/firm to participate in the bid. Copy of the said TCN, the details of bid notice for purchase of soya chunks for MDM Programme for the year 2008 -09 have been attached to the writ petition as annexure 4. The petitioner submitted the bid before the authority within the stipulated time along with VAT clearance certificate, TIN No. 21101800603 and OST No. BP -II -1157 in respect of the petitioner - firm and all other documents relating to solvency, income -tax clearance, agency licence issued by RTA, PAN number along with earnest money of Rs. 50,000. Including the petitioner - firm there were as many as thirteen persons who submitted their tenders but out of thirteen, tenders of eleven persons were rejected on the ground of want of documents and other eligibility conditions. As such, only two tenderers, the petitioner as well as opposite party No. 3 remained in the race and their rate was finalized for evaluation. After evaluation, it was found that the rate quoted by the petitioner was Rs. 61.61 per kg. whereas the rate quoted by opposite party No. 3 was Rs. 81 per kg. of soya chunks. The petitioner being found to be the lowest bidder, his offer was accepted and accordingly, the agreement was executed on June 23, 2008 for supply of soya chunks for the year 2008 -09. At this stage, opposite party No. 1 issued notice dated June 27, 2008 (annexure 7) stating therein that complaint has been received regarding the VAT clearance certificate, TIN number furnished by the petitioner which stood in the name of Late Dewaram Agarwal as proprietor. In the said notice, the petitioner was asked to submit his show -cause as to why the agreement dated June 23, 2008 (annexure 6) shall not be cancelled. Upon receipt of such notice, on the very same day, the petitioner submitted various documents/annexure 8 series before the opposite party No. 1. However, the opposite party No. 1 cancelled the petitioner's agreement vide order No. 1819 dated July 1, 2008 (annexure 10) revoking the agreement executed with the petitioner - Dipak Trading Co. represented by Sri Koushal Kumar Agarwal on the ground that he failed to fulfil all the conditions of the tender by mis -representation of facts. In the said order, opposite party No. 1 has also called opposite party No. 3 Kaliram Agarwal the next lowest bidder among the eligible bidders for negotiation. Hence, this petition.

(3.) THE learned counsel appearing on behalf of opposite party No. 1 submitted that on receipt of a complaint challenging the genuineness of VAT clearance certificate submitted by the petitioner, opposite party No. 1, called for a report from the Assistant Commissioner, Commercial Taxes, Bolangir (hereinafter referred to as, "the ACCT") seeking clarification about the genuineness of the VAT clearance certificate furnished by the petitioner's firm. In reply, the ACCT intimated that one Dewaram Agarwal who had a valid VAT clearance certificate, had died on October 26, 2007. Sri Koushal Kumar Agarwal, one of the legal heirs of the deceased Dewaram Agarwal filed application before the STO, Kantabanji Circle for change of ownership of the aforesaid business from Dewaram Agarwal to Sri Koushal Kumar Agarwal. The competent authority to change the ownership of the business is the ACCT, Bolangir and not the STO, Kantabanji. Therefore, VAT clearance certificate issued by the STO in favour of Sri Koushal Kumar Agarwal is not valid and the same would be valid only after amendment sought for by Sri Koushal Kumar Agarwal is allowed. In view of this, opposite party No. 1 has taken a decision that VAT clearance certificate furnished by the petitioner's firm was not a genuine certificate and cannot be accepted. A copy of letter No. 2626 dated June 25, 2008 of the ACCT, Bolangir is annexed to the counter -affidavit as annexure A/1. On the basis of the report of the ACCT, a notice was issued to the petitioner to show cause as to why his tender shall not be cancelled. In reply to the said show -cause notice, the petitioner submitted some old documents, which he had filed along with the tender papers. As no new material was submitted by the petitioner to prove the genuineness of VAT clearance certificate, the show -cause notice submitted by the petitioner was not accepted and the agreement executed with him was revoked. Keeping in view the immediate necessity for supply of soya chunks for the MDM to maintain the nutrition of the young school going children, the Collector thought it fit to negotiate with the opposite party No. 3 for supply of soya chunks. In that process an application was made and opposite party No. 3 agreed to supply soya chunks at the rate quoted by the petitioner. Consequently necessary agreement was executed with opposite party No. 3 for supply of chunks. The said agreement was valid for one year from the date of execution of the agreement.