High Court
Case Details
W.P.(C) No. 13416 of 2012 Present : Mr S.K. Das, Advocate for the petitioners. Mr R.K. Mohapatra, Govt. Advocate. 10. 17.12.2013 This petition seeks quashing of tender call notice dated 23.07.2012 (Annexure-4) and a direction to consider tenders submitted by the petitioners and to award works under the earlier NIT dated 21.01.2012 (Annexure-1). The case of the petitioners is that they are P.W.D. contractors and executing various type of works and gave their bids pursuant to the tender call notice dated 21.01.2012 issued by the Superintending Engineer, Rural Works Circle, Bhawanipatna for construction of roads and C.D. works under P.M.G.S.Y. (Prime Minister Gramya Sadak Yojana) Scheme in packages including maintenance for five years. The cost fixed for different type of works was rupees 50 lakhs to 8 crores. The time for completion of the work was fixed to be 12 calendar months for work above 1 crore, and 9 calendar months for work below 1 crore. The petitioners submitted tender papers with bank draft worth Rs.10,400/- for 42 nos. of works floated in the tender notice under R.W. Division, Bhawanipatna. Technical bids were opened on 12.03.2012 and final bids were to be opened on 17.03.2012, but the matter was not finalized. Thereafter the impugned tender notice was issued which was being politically motivated to favour contractors sponsored and recommended by some M.L.As. and Ministers without
Legal Reasoning
canceling the first tender notice. The petitioners were single tenderers and qualified in all the tenders. In similar -2- circumstances, in other divisions the works have been allotted.
Legal Reasoning
Considering the contention raised on behalf of the petitioners, this Court vide order dated 31.07.2012 stayed operation of the Tender Notice dated 23.07.2012. Thus, for last one and half years, the work has not proceeded. Counter affidavit has been filed on behalf of opp. party nos.1 and 3 by the Executive Engineer, Rural Works Division, Dharamgarh stating that there was allegation of tender fixing and the Superintendent of Police, Vigilance, Koraput Division, informed the Superintending Engineer that many contractors could not submit tenders on account of threats as a result of which only single tenders were submitted. Considering the said report, the Government in Rural Development Department decided to cancel the above single tender. The petitioners were free to participate in the fresh tender process. Considering the counter affidavit, on 24.09.2013, this Court observed that though situation appeared to be similar in three divisions of Bhawanipatna Circle, it was not clear as to why only in one division tender process was cancelled. Accordingly, direction was issued to file a further affidavit. Further affidavit has been filed on 26.11.2013 explaining the position as follows: “That the reasons for taking a decision to cancel the tenders of Rural Works Division, Bhawanipatna excepting the other two divisions was on the basis of the advice of Superintendent of Police, Vigilance. It is humbly submitted that on receipt of letter of the the Superintendent Superintending Engineer, R.W. Circle, Bhawanipatna Vigilance, Police, of -3- had drawn the attention of the Chief Engineer, R.W. – I, Odisha, Bhubaneswar vide letter No.174 dated 23.03.2012 filed to the earlier counter affidavit as Annexure-B/1. The Chief Engineer, Rural Works-I as per letter no.6169 dated 04.04.2012 informed the Superintending Engineer, R.W. Circle, Bhawanipatna about receipt of clearance from the Ministry of Rural Development, Govt. of India for execution of the projects under IAP-II. It has also been instructed to process the tender and award the works within the competency of Superintending Engineer observing the prevailing PMGSY guidelines except for the works tender under Rural Works Division, Bhawanipatna, in view of allegation of tender fixing. The Chief Engineer, R.W.-I, Odisha vide office letter no.9960 the Superintending informed dated 05.06.2012 Engineer, R.W. Circle, Bhawanipatna that the matter was discussed before the Hon’ble Minister, Rural Development and Law in presence of the Principal Secretary to Government in R.D. Department and the Chief Engineer, R.W.-I on 22.05.2012 and it was decided to process all packages under the R.W. Circle, Bhawanipatna including negotiations with bidders and to submit the same to the higher authority whenever necessary except for tenders pertaining to Rural Works Division, Bhawanipatna. The Superintending Engineer was also instructed not to finalise the tenders till clearance on the matter is received from the Government……..” We have heard learned counsel for the parties. Learned counsel for the petitioners submits that the petitioners may not have a right to insist that the tender process to be proceeded with, the decision of the opposite parties must be fair. There is no material to substantiate the report of the Superintendent of Police, Vigilance that all the contractors could not participate. The Chief Engineer in his report to the Principal Secretary dated 4.5.2012 (Annexure- 5) clearly stated that the report of the Superintendent of Police Vigilance was not substantiated and the said stand of -4- the Chief Engineer ought to have been accepted by the Government. There is no qualitative difference in one division where the tender process was cancelled and the other two divisions where the tender process was proceeded with. Learned Govt. Advocate justifies the stand of the opp. parties. It is pointed out that no individual has been made party in support of allegations of mala fide. Casual averment that direction was to benefit persons supported by M.L.As. and Misters cannot be accepted. The decision to cancel the tender process was bona fide in view of report that there were no competitive bids. On due consideration, we are of the view that no interference is called for by this Court in absence of any material to show favouritism or lack of bona fides. In absence thereof, this Court cannot substitute its own decision in place of decision of the administrative authority. The executive has the freedom of contract and free play in joints is essential for decision making, subject to decision being bona fide and rational and not against public interest. General rule in such matter is judicial restraint in absence of manifest arbitrariness of favouritism. Reference in this context may be made to decision of the Supreme Court in Siemens Public Communication Networks Private Limited and another v. Union of India and others, (2008) 16 SCC 215. We are unable to accept the submission that merely because the competent authority has taken a decision not to go ahead with the tender, the same is mala -5- fide or irrational. Mere fact that there was difference in perceptions of the Superintendent of Police, Vigilance and the Chief Engineer did not compel the Government to reject the view of the Superintendent of Police, Vigilance. This Court is not, thus, inclined to interfere with the decision to cancel the tender process merely on the ground that different view could be taken in the matter. As already observed, execution of public projects cannot be obstructed unless clear case of illegality or mala fide is made out. There is no case of personal mala fides. No individual M.L.A. or Minister has been impleaded who allegedly influenced the decision making. Cancellation of process does not in any manner preclude the petitioners from participating in the fresh tender process. The fact that at some other places, the process has not been cancelled can also not be a ground to direct that the work be awarded to the petitioners and fresh tender process should not be initiated. In these circumstances, no ground has been made out to interfere.
Decision
The petition is dismissed. pcp A.K.Goel, C.J. ……......……………… ……………………….. Dr. A.K. Rath, J.