The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 7122 of 2024 M/s. Aditya Fabrication, Nayagarh …. Petitioner Mr. Subir Palit, Senior Advocate along with Mr. Pratik Dash, Advocate -versus- State of Odisha and others …. Opposite Parties Mr. Saswat Das, Additional Government Advocate Mr. Bibhu Prasad Tripathy, Senior Advocate along with Mr. N. Barik, Advocate for OP Nos.2 & 3 Mr. G. Mohanty, Advocate for OP Nos.4 to 6 CORAM: HON’BLE THE CHIEF JUSTICE AND HON’BLE MR JUSTICE MURAHARI SRI RAMAN Order No. ORDER 25.06.2025 10. 1. The instant writ petition is at the behest of a non- empanelled supplier assailing the tender floated on 2nd March, 2024 for supply of 3-tire Vertical Mild Steel Stands by the Odisha Agro Industry Corporation Limited (in short ‘OAIC’) being arbitrary, illegal and discriminatory in nature. 2. It is averred in the writ petition that the said Odisha Agro Industry Corporation, being a Odisha Government undertaking, was established to promote the agricultural products and the machineries Page 1 of 11 and to develop the bio-fertilizer, manure, cattle and the poultry feeds with an avowed object of educating and training the farmers for optimum utilization of the technology in the farming sector. 3. It is further averred that the tender was floated on 2nd March, 2024 for supply of the aforementioned materials at different Anganwadi Centers without making a wide publication in haste. It is stated that the meeting, under the Chairmanship of the Director of the Agriculture and Food Production was held on the date, on which the said tender was floated, at 4:00 P.M and the Resolution taken in the said meeting would indicate that the aforementioned materials may be supplied at the Anganwadi Centers as per the suggested specifications and the procurement and supply would be ensured through the rate contract/short tender/procurement from the Government agencies as per the requirement. 4.
Legal Reasoning
It is trite law that the tool for interpretation of a document mandates the consideration of the documents as a whole and not in a piecemeal manner. While gathering the intention from the words or the expressions used in the document, the Court should not segregate one sentence from hither and thither and add it to the other to uphold the contention what actually intended. 14. The harmonious reading of various clauses, the words or the expressions used in the written document should be ensured and the intention of the maker of the said document has to be deciphered from the meaningful reading thereof. It does not appear from the tender document that the latent intention was to empanel the Page 7 of 11 suppliers and not the procurement of the materials but in effect, it was floated for procurement of the materials, the description whereof was given therein which would further be corroborated by the decision taken in the meeting as reflected in the resolution annexed
Arguments
Mr. Subir Palit, learned Senior Counsel appearing for the petitioner submits that the moment the Committee under the Chair of the Director of the Agriculture and Food Production decided the procurement of the said goods at 4:00 P.M., it is inconceivable that the publication inviting the invitation by way of a tender would be floated prior thereto. It is further contended that various clauses Page 2 of 11 appended to a tender styled as an Expression of Interest or suggestive of the fact that the invitation was sought to empanel the suppliers to meet the requirements of the said corporation cannot be construed by any stretch of imagination to be a tender for supply of the goods. 5. It is further submitted that even if, for the sake of the argument, it is considered as a supply of goods, there is a complete lack of synergy among different clauses of the said tender and its comprehension is vague and ambiguous. He thus submits that the petitioner, who has expertise in supplying the goods, was prevented from participating in the tender and, therefore, the tender should be declared as illegal, arbitrary and smack of discrimination perpetrated upon him. 6. Mr. G. Mohanty, learned counsel for the opposite parties No.4 to 6, who was adjudged as the successful bidder having quoted a competitive price for supply of the goods mentioned in the said tender document, submits that after the purchase order was issued by the corporation and because of the declaration of the Assembly election, the Code of Conduct becomes operative, a fetter was put in supplying the said goods though the same is otherwise ready and the Page 3 of 11 said opposite parties are facing inconvenience because of the aforesaid materials occupying a major portion of the storage available to them. It is further submitted that the letter issued by the corporation is indicative of the fact that the supply was kept in abeyance because of the Code of Conduct becomes applicable but even after the same was lifted, yet till date no direction has been issued to supply the said materials. He thus submits that the said opposite parties have incurred a huge expenditure in procurement of the materials and the inaction on the part of the corporation has caused an immense loss. 7. Mr. B.P. Tripathy, learned Senior Counsel appearing for the OAIC submits that the said tender was floated for supply of the materials as mentioned therein and a composite stipulation can be seen therefrom that they also intended to empanel other Small Scale Industries (SSIs) in order to expand the horizon of the competition and the competitive rates to be quoted for supply in future. He vociferously submits that the language used in the tender document cannot create any confusion in the mind of the person that it was actually intended for empanelling the suppliers and not for supply of the materials, the specification thereof is given in lucid manner. He Page 4 of 11 further submits that because of the Code of Conduct having imposed on declaration of the Assembly Election, the supply could not be effected although the purchase order was already issued in favour of the opposite parties No.4 to 6. 8. Obviously, the State who is arraigned as a party has a negligible role in the cause of action pleaded in the instant writ petition and the counsel appearing for them adopted the stand taken by the corporation, being a Government of Odisha undertaking. 9. It is no doubt true that the meeting of the Committee under the Chairmanship of the Director of the Agriculture and Food Production was held on 2nd March, 2024 at 4:00 P.M. One of the agenda in the said meeting was for supply of 3-tire Vertical Stands at respective Anganwadi Centers and the resolution would reveal that the procurement thereof was agreed through a rate contract/short tender/procurement from the Government agency as per the requirement. 10. Obviously, the tender documents annexed to the writ petition would corroborate the fact that the said tender was floated on the same day for supply of the said materials after having Page 5 of 11 approved by the competent authority inviting the applications between the period from 2nd March, 2024 to 11th March, 2024. The "Expression of Interest" as the caption goes is for procurement of the 3-tire Vertical Mild Steel Stands for cultivation of vegetables plants and the last date for submission of the tender document was fixed on 11th March, 2024. The bids were to be opened on 11th March, 2024 at 1:00 P.M. and a right was reserved upon the Managing Director to accept or reject (fully or partly) the tender without assigning any reasons therefor. 11. The detailed specification is also appended to the schedule in the "Expression of Interest" with a disclaimer that certain safeguards are to be taken and will not be construed as an offer by the OAIC but an invitation to receive responses from the eligible interested firms for empanelment to install solar irrigation projects. 12. The general instructions to the bidder postulates that the empanelment shall remain valid initially for one year from the date of publication of the empanelled list in the official website of the corporation extendable for another period of one year on the same or mutually agreed terms and conditions subject however to the satisfactory performance by the corporation. The instruction further Page 6 of 11 proceeds that the applicants must furnish all the information as per the said "Expression of Interest" while participating in the empanelment process and the firms who are qualified with regard to the eligibility criteria would be short listed (empanelled by the corporation). Because of this instruction to the bidder containing the aforesaid clauses relating to the application for empanelment to be short listed by the corporation, an impression is created into the petitioner that the said tender is, in fact, floated for empanelment of the suppliers and not for procurement of the said goods. 13.
Decision
to the writ petition. Whether the tender was floated in anticipation of a decision to be taken in the meeting or in other words, at an anterior time, depends upon the nature of the materials and the requirements in case of an exigency and/or urgency 15. The Committee ultimately approved the procurement of the said materials and even though the same was published on the same day, but the last date for submission of the bid was fixed till 11th March, 2024 (up to noon). 16. We do not find any justification that since the said tender was floated on the same day of the resolution taken by the Committee, it would invalidate and/or render the same illegal, arbitrary and discriminatory. 17. The instruction to the bidder appended to the tender document though forms integral part of the tender, yet cannot be said to dilute the primary intention of the authority and, therefore, is Page 8 of 11 relatable to the primary object. The general instructions to the intending bidder cannot be projected upfront to destroy the primary object for which the tender was floated which in this case was for procurement of the materials from the intending bidders. 18. Though the brief description of the "Expression of Interest" process is suggestive of the duration of the empanelment or the empanelment to be done but the same cannot be a decisive factor to diminish the primary intention of the authorities in floating the tender for procurement of the goods. 19. Several objections are raised in the instant writ petition on the eligibility of the petitioner being not the Small Scale Industry (SSI), which in our opinion, is de hors the cause of action. The suitability and the eligibility is to be considered at the time of an empanelment and it is not in dispute that the petitioner is not empanelled by the corporation as of now. 20. We are conscious of the consequences and/or the benefits received by the empanelled suppliers who are the SSIs and the policy decision taken by the Government to promote such industries. Once the corporation decided to empanel several SSIs in order to Page 9 of 11 make a healthy competition in the market and also to ensure the rational distribution of the benefits arising out of the activities of the corporation, the corporation cannot deny the rightful claim of the persons who otherwise qualify and fulfill all the criteria required therefor. 21. It appears in the course of hearing that the corporation has not issued the order for supply of the said materials upon opposite parties No.4 to 6 and has kept the same in abeyance. The supply cannot be kept in medio for all time to come as it frustrates the very core object of its procurement. The supply shall ensure the benefits to the common people, more particularly, the children of the society who are availing the benefits at the Anganwadi Centers in different corners of the State. It is an ardent duty of the corporation to uphold and/or ensure such benefits uninterruptedly and continuously without frustrating its ethos for which such policy was taken by the Government being one of the primary responsibilities provided in the Constitution of India. 22. We do not find any fetter having continuing in the corporation in not resuming the supply of the materials in terms of the purchase order issued to opposite parties No.4 to 6. It is thus Page 10 of 11 open to the corporation to take a conscious decision in this regard. We do not find any reason that the tender is liable to be quashed being arbitrary, illegal and discriminatory as the same was floated on the ground of an exigency and/or urgency having noticed in the meeting held on 2nd March, 2024. 23. We do not find any ground warranting interference. However, it is open to the petitioner to apply before the corporation for empanelment and in the event such application is made, the corporation will take a conscious decision thereupon in a pragmatic manner. 24. The writ petition is thus disposed of with the above observations. Judge (Harish Tandon) Chief Justice (M.S. Raman) S.K. Behera/ S. Behera Signature Not Verified Digitally Signed Signed by: SUMANTA BEHERA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 10-Jul-2025 19:33:49 Page 11 of 11