The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.25737 of 2023 Oditrade Techno Pvt. Ltd., Khordha Petitioner Mr. Alok Kumar Panda, Advocate …. -versus- State of Odisha and Another
Legal Reasoning
…. Opposite Parties Mr. P.P. Mohanty, Addl. Govt. Advocate (State) Mr. Srikanta Ku. Nath, Advocate (OP No.2) CORAM: ACTING CHIEF JUSTICE DR. B. R. SARANGI MR. JUSTICE MURAHARI SRI RAMAN Order No. 04.
Decision
ORDER 12.01.2024 1. Heard Mr. Alok Kumar Panda, learned counsel appearing for the petitioner, Mr. P.P. Mohanty, learned Addl. Govt. Advocate for the State-opposite parties and Mr. Srikanta Kumar Nath, learned counsel for Opposite Party No.2. 2. The petitioner has filed this writ petition seeking to quash the letter dated 31.07.2023 issued by Opposite Party No.2-Executive Officer, Notified Area Council, Hindol by which the bid of the petitioner has been cancelled. 3. Mr. Panda, learned counsel appearing for the petitioner contended that pursuant to the bid document issued under Annexure-1, the petitioner participated in the tender for providing waste collection vehicles (Q3). The requirement was to deliver the vehicles within 30 Page 1 of 5 days from the date of issuance of the work order. Therefore, when the petitioner was ready to deliver the vehicles within 30 days, it called upon them to have verification of the vehicles. The delay for verification was caused at the level of opposite party No.2 and as such, no verification was done. Therefore, subsequently, when the petitioner requested for verification, he was replied that on telephonic request the opposite party No.2 has already verified the vehicles on 21.06.2023. After verification, the petitioner has not been intimated to deliver the vehicles till date. All on a sudden, by letter dated 31.07.2023, Opposite Party No.2 cancelled the bid without assigning any reason. 4. Mr. S.K.Nath, learned counsel appearing for opposite party No.2 stated that a counter affidavit has been filed on behalf of the said opposite party. The reason for cancellation has been given in para 3 of the said counter affidavit. It is stated therein that in anticipation of receiving Government grant under Swachh Bharat Mission, the tender was invited as per the decision taken in council meeting on 22.12.2022. The anticipated government grant for the financial year 2023-24 was not received. Therefore, the opposite party No.2 cancelled the bid of the petitioner. 5. Having heard learned counsel for the parties and considering the materials available on record, as it appears that the impugned letter does not assign reasons of cancellation but the same has been mentioned in the counter affidavit filed by opposite party No.2, Page 2 of 5 thereby, the reasons assigned in the counter affidavit have not been taken into consideration for cancellation of the bid of the petitioner. 6. The reasons assigned in the counter affidavit, as stated above, cannot be accepted as the letter dated 31.07.2023 under Annexure-5, has been issued cancelling the bid of the petitioner, which does not satisfy the requirement for cancellation of the tender. The letter impugned does not indicate the reason for which the tender has been cancelled, rather, by way of filing counter affidavit, reasons cannot be supplemented or supplanted to the letter impugned in the writ petition. As such, the subsequent explanation given in the counter affidavit, cannot be taken into consideration, in view of the judgment of this Court in M/s Shree Ganesh Construction v. State of Orissa, 2016 (II) OLR 237, which has been passed by following the judgment of the apex Court in Mohinder Singh Gill v The Chief Election Commissioner, New Delhi, AIR 1978 SC. In paragraphs-7 and 8 of the judgment in Shree Ganesh Construction, mentioned supra, this Court observed as under:- “7. In the counter affidavit filed, the reasons have been assigned, which are not available in the impugned order of cancellation filed before this Court in Annexure-4 dated 5.2.2016. More so, while cancelling the tender, the principles of natural justice have not been complied with. It is well settled principle of law laid down by the Apex Court in Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi and others, AIR 1978 SC 851 that: Page 3 of 5 “When a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise an order bad in the beginning may by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out.” 8. In Commissioner of Police, Bombay v. Gordhandas Bhanji, AIR 1952 SC 16, the Apex Court held as follows: “Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. Orders are not like old wine becoming better as they grow older.” 7. In view of such position, this Court is of the considered view that since no reasons have been assigned in the letter dated 31.07.2023 under Annexure-5, while cancelling the bid of the petitioner and the reasons stated in the counter affidavit justifying the action of the Opposite Party No.2 in cancelling the tender being not sustainable, the letter dated 31.07.2023 under Annexure-5 cannot be sustained and the same is liable to be quashed and is hereby quashed. Consequently, the matter is Page 4 of 5 remanded to Opposite Party No.2 to pass appropriate order in accordance with law in compliance with the principles of natural justice within a period of one month from the date of communication of this order. 8. With the above observation and direction, the writ petition is disposed of. An urgent certified copy of this order be issued as per rules. (DR. B. R. SARANGI) ACTING CHIEF JUSTICE JUDGE (M. S. RAMAN) S.K.Jena/Secy. Signature Not Verified Digitally Signed Signed by: SANJAY KUMAR JENA Designation: SECRETARY Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 16-Jan-2024 16:12:11 Page 5 of 5