Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK W.P.(C) No.14960 of 2025 In the matter of Applications under Articles 226 and 227 of the Constitution of India *** M/s.D.K.Engineering & Construction, At/PO:Belgaon, Dist.Bolangir, represented Through its partner Sri Dhirendrar Kumar Jain, aged 52 years, S/O:Ganesh Chand Jain … Petitioner -VERSUS- 1. State of Odisha, represented Secretary, Rural Development Department Secretariat Building, Bhubaneswar. 2.Engineeer-in-Chief, Rural Works, Odisha Unit-IV, Bhubaneswar, Dist:Khurda. 3.Chief Engineer (Building & Bridges), Rural Works (Odisha), Bhubaneswar. 4. Chief Construction Engineer, Rural Works Circle, Sunabeda, Dist:Koraput. 5. Superintending Engineer, Rural Works Division, Sunabeda, Dist:Koraput 6.Rajat Kumar Padhi, A Class Contractor, At-Lingaraj Nagar, P.O.Jeypore, Dist:Koraput … Opposite parties W.P.(C) No.14960 of 2025 Page 1 of 17 Counsel appeared for the parties: For the Petitioner : Mr. Janmejaya Katikia, Advocate For the Opposite parties : Ms.Aishwarya Dash, Additional Standing Counsel Mr. Pranaya Kumar Maharaj, Advocate (for Opposite Party No.6) P R E S E N T: HONOURABLE CHIEF JUSTICE MR. HARISH TANDON AND HONOURABLE JUSTICE MR. MURAHARI SRI RAMAN Date of Hearing : 28.07.2025 :: Date of Judgment : 28.07.2025 HARISH TANDON, C.J.— J UDGMENT The present writ petition is taken out by L-1 bidder seeking to quash the order dated 15th May, 2025 issued by the Chief Construction Engineer, Rural Works Circle, Sunabeda whereby and wherein the bid of the petitioner was cancelled having not complied with the requirements within the stipulated time. W.P.(C) No.14960 of 2025 Page 2 of 17 2. Shorn off unnecessary, details the facts which can be reasonably discerned from the pleadings proceeds that pursuant to floating of e-procurement notice by the Chief Construction Engineer, Rural Works Circle, Sunabeda on 26th June, 2024 for building works, i.e., construction of 100 seated Boys Hotel (G+2) at Government I.T.I., Nandapur in the district of Koraput for the year 2023-24, the petitioner offered the bid and was declared as the lowest bidder. Though it is indicated that the time for completion of the said tender process was extended from time to time, but the pith and substance which we could reasonably be gathered from the pleading that the petitioner was adjudged as the lowest bidder and therefore became entitled to the said tender. 2.1. The conditions stipulated in the tender document provides for the submission of several documents including the bank guarantee and the execution of a formal agreement within the time as indicated therein. Admittedly, after the petitioner was found the lowest bidder, a letter dated 21st February, 2025 was issued to the petitioner to attend the office within seven days from the date of the issuance of the said letter for drawal of the agreement along with the documents disclosed therein. It was expressly indicated in the said letter that in the event of default of compliance as W.P.(C) No.14960 of 2025 Page 3 of 17 mentioned therein, the tender may be liable for rejection. 2.2. The aforesaid cautionary note appears twice in the said letter but despite the content of the said letter having communicated, there is no attempt on the part of the petitioner to attend the office to execute the formal agreement along with the aforementioned
Decision
documents. It is expressly pleaded in the writ petition that since one of the requisite formality required for drawal of an agreement is of furnishing the bank guarantee, the time was consumed by the banker and immediately after obtaining the bank guarantee, the authorities were apprised of the said fact and the prayer was made to fix a date on which a formal agreement could be executed. The record reveals that the letter was issued by the petitioner on 11th March, 2025 wherein the petitioner asked for the requisite bank accounts details which the banker of the petitioner required for the bank guarantee. 3. According to the petitioner despite such letter having received, no details were given by the authorities but after obtaining the same from other sources, the bank issued a bank guarantee on 13th March, 2025 in favour of the authority, yet after receiving the bank guarantee, no formal letter for W.P.(C) No.14960 of 2025 Page 4 of 17 execution of the agreement was communicated to the petitioner. 3.1. Further, the letter calling upon the authorities to execute the document as all the requisite information or the documents to be furnished are at the disposal of the petitioner but to the surprise of the petitioner a letter was received on 26th March, 2025 intimating that since the petitioner miserably failed to submit all the documents within the time indicated in the said letter dated 21st February, 2025, his bid was liable to be cancelled and in fact, the notice was for cancellation of the said bid. After receipt of the said letter dated 26th March, 2025, immediately the petitioner wrote to the authorities on 27th March, 2025 indicating that the petitioner was not at default and therefore he may be permitted to execute the said work. 3.2. Subsequent thereto a letter dated 15th May, 2025 was issued by the authority communicating a decision on cancellation of the bid submitted by the petitioner and a further request letter was issued on 22nd May, 2025 by the petitioner to reconsider the case on the disclosure of the facts narrated therein. One of the pleas that would appear from the said letter that the shelter was taken under Clause 1.5 of the Detailed Tender Call Notice (DTCN) which stipulated a period of 10 days for drawal of an agreement and since the shorter period of time was given in the letter dated 21st Page 5 of 17 W.P.(C) No.14960 of 2025 February, 2025, the petitioner cannot be put to such a stringent action. Apart from the same, the plea taken was that the bank took time to prepare the bank guarantee which was beyond the control of the petitioner. 3.3. On the above factual matrix, the counsel for the petitioner submits that the authorities have not only fixed a shorter period of time in contradiction to clause-1.5 of DTCN in the said letter dated 21st February, 2025 but also misguided itself in computation of the said period. 3.4. According to the counsel for the petitioner, the period for doing a particular act is required to be calculated under Section 10 of the General Clauses Act, 1897 and not in a whimsical manner and placed reliance upon a judgment of the Apex Court in HUDA and another v. Dr.Babeswar Kanhar and another reported in (2005) 1 SCC 191. 3.5. The counsel for the petitioner further submits that while computing the period for compliance of a requisition in a public contract, the holidays have to be excluded under Section-10 of the said Act and placed reliance of another judgment of the Apex Court in case of Om Gurusai Construction Company v. V.N.Reddy and others reported in 2023 SCC Online SC 1051. It is fervently submitted by the learned W.P.(C) No.14960 of 2025 Page 6 of 17 counsel that because of the procedural hassles and other technical difficulties in adhering to the time limit, the authorities may proceed to blacklist the petitioner and impose the penalty and therefore the Court must take a pragmatic view on the basis of disclosure of facts in the instant case. The counsel for the petitioner also relied upon the contents of various letters issued by the authorities depicting the facts which according to him is incorrect. 4. On the other hand, learned counsel for the State submits that since the petitioner did not comply with the requisitions made in the letter dated 21st February, 2025, his bid was cancelled and in fact the work is allotted to 2nd lowest bidder who is arrayed as opposite party No.6 herein. She further submits that there is no illegality and/or infirmity in the action of the authorities in rejecting the bid and therefore the Court should reject the instant writ petition being devoid of merit. 5. The opposite party No.6 is also represented and corroborates the fact that the works contract has been executed by entering into an agreement and in fact he has taken all possible steps to commence the work. 5.1. On the conspectus of the facts and the submissions advanced before us, the first and Page 7 of 17 W.P.(C) No.14960 of 2025 foremost point which involves in the instant writ petition is whether the action of the authorities in rejecting the bid of the petitioner despite having declared as lowest bidder can be justified on the factual matrix. 6. The sequel of events and the narration of facts in the preceding paragraphs of this judgment manifestly indicate that the petitioner was adjudged as a lowest bidder in the said tender floated by the authorities for construction of the work specified therein. It is undisputed that mere declaration of a lowest bidder in a bidding process does not ipso facto create an indefeasible or inchoate right into contractor unless he complies the other conditions enshrined therein. One of the conditions required under the said DTCN is the drawal of an agreement upon submission of the various documents, the details whereof can be reasonably seen from the letter dated 21st February, 2025. The said letter was issued calling upon the petitioner to attend the office for execution of a drawal of an agreement together with the documents mentioned therein, one of which relates to furnishing of a bank guarantee. 7. We do not find from the pleadings that apart from the bank guarantee, the time was consumed for W.P.(C) No.14960 of 2025 Page 8 of 17 collation and collection of those documents but the entire gamut of disputes revolves around non- procurement of the bank guarantee for the reasons as indicated hereinabove. The authorities have proceeded on the premise that since the petitioner did not attend the office within the time stipulated in the said letter along with the requisite documents, therefore, the bid is liable to be cancelled. 8. On the other hand, the contention of the petitioner appears to be three-folds. Firstly, the period stipulated in the said letter is contrary to Clause 1.5 of the DTCN. Secondly, the period has to be computed and reckoned by applying the provision contained in Section 10 of the General Clauses Act. Thirdly, immediately after obtaining the bank guarantee the approach was made at a time when no steps were taken for cancellation nor any agreement was executed in favour of the L-2, and therefore the authorities could have permitted the petitioner to execute the agreement by extending the time. 9. So far as, the first point is concerned, even if the period is shorter to what is provided in Clause 1.5 of the DTCN, we do not find from the documentary evidence that the approach was made to the authority within the time which was indicated in the said Clause W.P.(C) No.14960 of 2025 Page 9 of 17 of the DTCN. Mere fixing a shorter time does not ipso facto render the said action of the authority liable to be interfered with unless the action of the authority is seemingly made within the time stipulated in the statutory document or a contractual document. Had it been a case that the authorities have cancelled the bid within 10 days from the date of issuance of the said notice, the position would have been different. We are conscious that once the tender document stipulated a time within which a certain action is required to be done the authorities cannot unilaterally fix another time limit and make the person suffer having failed to comply the requisition within the said time. The first communication made by the petitioner was on 11th March, 2025 and even if the period of 10 days is to be reckoned from the date of issuance of the letter, i.e., 21st February, 2025, the approach falls beyond the said period of 10 days, and therefore for mere technicalities of fixing a shorter time does not invalidate the action of the authorities. 10. On the second plea of the computation of the period, it would be profitable and apposite to quote Section 10 of General Clauses Act, 1897, which reads thus: "10. Computation of time.- (1) Where, by any [Central Act] the commencement of this Act, any act or proceeding is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period, or Regulation made after W.P.(C) No.14960 of 2025 Page 10 of 17 then, if the Court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open: Provided that nothing in this section shall apply to any act or proceeding to which the Indian Limitation Act, 1877 (15 of 1877), applies. (2) This section applies also to all [Central Acts] and Regulations made on or after the fourteenth day of January, 1887.” 11. On a bare reading of the language employed in the said above quoted provision, while computing the time within which compliance is to be made, the day on which the office is closed or in the event on the last day when it is so closed, the act or the proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the office is open. 12. It, thus, logically follows the principles that in the event any action is required to be done within the stipulated time and if it is found the Court or the office is closed on the said last date, such action if taken on the next available day, or a working day shall be treated to have been made within the time limit provided therefor. 13. The aforesaid principles are fructified from the judgment of the Apex Court in the case of HUDA and another (supra) with respect to commencement of the W.P.(C) No.14960 of 2025 Page 11 of 17 period of time in the event the day on which such act is to be reckoned appears to be a holiday. In the said report, though the letter was issued on 28th November, 2001 but was communicated on 30th November, 2001 and it appears that on the 1st and the 2nd December the office was closed and if the action has been taken immediately thereafter, i.e., on the next day on which the office remained open, it was found that the stipulation of time in the said letter cannot be computed by engulfing within itself the days when the office was closed or was declared holiday in the following: “What is stipulated in Clause 4 of the letter dated 30.10.2001 is a communication regarding refusal to accept the allotment. This was done on 28.11.2001. Respondent No.1 cannot be put to loss for the closure of the office of HUDA on 01.12.2001 and 02.12.2001 and the postal holiday on 30.11.2001. In fact he had no control over these matters. Even the logic of Section 10 of the General Clauses Act, 1897 can be pressed into service. Apart from the said section and various provisions in various other Acts, there is the general principle that a party prevented from doing an act by some circumstances beyond his control, can do so at the first subsequent opportunity (see Sambasiva Chari V. Ramaswami Reddi). The underlying object of the principle is to enable a person to do what he could have done on a holiday, on the next working day. Where, therefore, a period is prescribed for the performance of an act in a court or office, and that period expires on a holiday, then the act should be considered to have been done within that period if it is done on the next day on which the court or office is open. The reason is that law does not compel the performance of an impossibility. (See Hossein Ally V. justice and Donzelle). Every consideration of W.P.(C) No.14960 of 2025 Page 12 of 17 expediency would require that the accepted principle which underlies Section 10 of the General Clauses Act should be applied in cases where it does not otherwise in terms apply. The principles underlying are lex non cogit ad impossibilia (the law does not compel a man to do the impossible) and actus curiae neminem gravabit (the act of Court shall prejudice no man). Above being the position, there is nothing infirm in the orders passed by the forums below. However, the rate of interest fixed appears to be slightly on the higher side and is reduced to 9% to be paid with effect from 03.12.2001, i.e., the date on which the letter was received by HUDA.” 14. In Om Gurusai Construction Company (supra), Clause 2.2.0 (ix) of the tender document stipulates two days period for submission of demand drafts/bank guarantee or fixed deposit receipt as additional performance security from the date of the opening of the bid. 15. It appears that the bid was opened on 12th March, 2021 (Friday) and next two days, i.e., 13th March, 2021 was a Saturday and 14th March, 2021 was a Sunday. These days were Bank holidays. It was further noticed that on 15th March, 2021 and 16th March, 2021, there was a bank employees’ strike nationwide disrupting the banking activities throughout the country and the bank guarantee or the security was submitted on 17th March, 2021 immediately on a first available day after the aforesaid events. Interestingly, the said judgment is cited by the W.P.(C) No.14960 of 2025 Page 13 of 17 petitioner in support of his contention, but we find that the bank guarantee was accepted by the authority from the lowest bidder and the challenge was made by L-2 to the Court that the authorities could not have accepted such security beyond two days. In such perspective, the Court has an occasion to consider the said aspect and did not find that the contention of the 2nd lowest bidder is acceptable in view of the mitigating circumstances disclosed therein. It was further held that the High Court while interfering with the order should not have taken into account the extraneous factors which does not impact the core issues in absence of pleading in this regard. 15.1. There is no quarrel to the proposition that while computing the period, the principles emanating under Section 12 of the Limitation Act, 1963 may also be taken into account. The computation is to be done by excluding the day from which it should reckon and if the said day is found to be a holiday or the Court or the office being closed, recourse under Section 10 of the General Clauses Act can also be taken. 15.2. As it appears in case of Om Gurusai Construction Company (supra), it is inconceivable that in the event the time for the purpose of its computation starts ticking on a day which is a working day, intervening holiday, i.e., Saturday and Sunday should be excluded which does not appear to be in W.P.(C) No.14960 of 2025 Page 14 of 17 consonance with the spirit of Section 10 of the General Clauses Act. It has its applicability in a situation where at the starting point of the computation if the office or the Court is closed for a holiday or in the event the last date falls within such holiday, those have to be excluded and if the action is taken within the first available working day, it would be treated to have been made within the time stipulated therein. 15.3. We are in fix whether the proposition of law laid down in the above report has any nexus to the present facts. Admittedly, either 10 days expires much before 11th March, 2025, i.e., the first day when the petitioner reported to the authorities for supply of the bank details, so that the bank guarantee can be issued by its banker within two or three days. If the action is manifestly taken after the expiration of the period, mere sympathy or the empathy cannot be projected to declare the action of the authorities beyond the conceivable powers bestowed upon. It was clearly indicated in the said letter dated 21st February, 2025 that in the event the petitioner does not appear for drawal of an agreement together with the documents; description whereof given, the bid is liable to be rejected, which in fact has been rejected. If the action of the authority cannot be perceived in a colourable exercise of power or in blatant violation of the term of W.P.(C) No.14960 of 2025 Page 15 of 17 the tender documents, the writ Court should be slow and circumspect in interfering with such action. 16. The power of judicial review should not be exercised solely on the basis of a decision of the authority, but to be exercised with circumspection on the decision making process. If the action of the authorities appears to be in consonance with the clauses or the terms and conditions or within the statutory provisions, such action should not be readily interfered with, unless there is an incriminating evidence produced which led to an inescapable conclusion that the action of the authority is tainted with mala fide, abuse and misuse of power, the discrimination is perpetrated upon the person and above all is violative of principles of natural justice. 17. We, thus, do not find that the authorities have acted contrary to any of the terms and conditions of the DTCN nor an act of mala fide appears before us and therefore we cannot find any grounds warranting the interference therewith. 17.1. Though it is neither pleaded nor any reliefs are claimed in the instant writ petition, on the submission advanced before us that on dismissal of the writ petition, the authority may proceed with blacklisting W.P.(C) No.14960 of 2025 Page 16 of 17 and imposition of penalty against the petitioner, we hasten to add that the consideration at the time of blacklisting a contractor or imposition of penalty depends upon the various factors to be weighed, and therefore, the authorities if contemplate to take any action or to take any independent decisions that is to be done after following the rules of law. 18. With the aforesaid observations and direction, the writ petition is disposed of. (HARISH TANDON) CHIEF JUSTICE (MURAHARI SRI RAMAN) JUDGE High Court of Orissa, Cuttack The 28th July, 2025/Bichi/Aswini Signature Not Verified Digitally Signed Signed by: BICHITRANANDA SAHOO Designation: Secretary Reason: Authentication Location: Orissa High Court Date: 05-Aug-2025 20:32:57 W.P.(C) No.14960 of 2025 Page 17 of 17