The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 30740 of 2023 Sanjay Kumar Sethy and others …. Petitioners State of Odisha and others Ms. Saswati Mohapatra, Advocate -versus- …. Opposite Parties Mr. P.P. Mohanty, AGA CORAM: ACTING CHIEF JUSTICE DR. B.R. SARANGI
Decision
ORDER 04.01.2024 05. 1. This matter is taken up through Hybrid mode. 2. Heard Ms. Saswati Mohapatra, learned counsel appearing for the Petitioners and Mr. P.P. Mohanty, learned Additional Government Advocate (AGA) for the State-Opposite Parties. 3. The Petitioners have filed the present writ petition seeking to quash the Tender Call Notice (TCN) dated 05.09.2023 under Annexure-6 and to direct the concerned authority to allot the work, pursuant to the TCN dated 17.07.2023 under Annexure-2, in favour of the Petitioners. 4. Ms. Saswati Mohapatra, learned counsel appearing for the Petitioners contends that the Petitioners pursuant to the TCN under Annexure-2 participated in the tender process and got selected for respective works, but such tender was cancelled vide notice dated Page 1 of 6 25.08.2023 under Annexure-5 without assigning any reason thereof and it was only stated that due to some unavoidable administrative and technical circumstances the tender has been cancelled. After cancelling such tender, immediately a fresh notice inviting the tender has been issued on 05.09.2023 under Annexure-6 for which the Petitioners have approached this Court by filing the present writ petition. She further states that since the tender cancellation notice dated 25.08.2023 has been issued without assigning any reasons, the same as well as subsequent TCN cannot be sustained and liable to be quashed. 5. Mr. P.P. Mohanty, learned AGA appearing for the State- Opposite Parties contends that since there were technical difficulties, the TCN issued on 17.07.2023 had been cancelled and a fresh TCN has been issued vide Annexure-6 inviting applications from the intending bidders. He further states that if the Petitioners are eligible, they can participate in the fresh bid so as to become the successful bidders and to undertake the work. 6. Having heard learned counsel for the parties and after going through the materials available on record, this Court finds that admittedly the Notice bearing TCN No-01/Sadar/2023-24 dated 17.07.2023 was issued inviting tender to undertake the respective work. Pursuant to such TCN, the Petitioners participated in the Page 2 of 6 tender process and became successful. Therefore, they are entitled to get the work order in their favour to undertake the work. As the work orders were not issued in their favour, they made query. Vide notice dated 25.08.2023 under Annexure-5, it was intimated to the following effect: Adv. No.-3501 Dated- 25.08.2023 TENDER CANCELLATION NOTICE Due to some unavoidable administrative & technical circumstances the Tender call notice bearing No.01/Sadar/2023- 24 dated 17.07.2023 & 02/Sadar/2023-24 dated 28.07.2023 is hereby Cancelled. 7. On perusal of the aforesaid intimation, it is found that no reasons have been assigned excepting that due to some unavoidable administrative and technical circumstances, the TCN dated 17.07.2023 has been cancelled. 8. This Court entertained the present writ petition on 21.09.2023 and issued notice to the Opposite Parties. In response to the same, the counter affidavit has been filed by Opposite Party No.4, paragraph-9 of which reads as under: “9. That in reply to the averments made in paragraph No.4 of the writ petition, it is humbly submitted that due to reasons as stated in the aforesaid paragraphs i.e. as the tender notice dtd.17.07.2023 has been invited by this deponent by way of off-line without Page 3 of 6 adhering the letters dtd.09.09.2022 and 10.10.2022 of PR & DW Department, Govt. of Odisha and subsequent letter dtd.17.08.2023 of Chief Development Officer-cum-Executive Officer, Zilla Parishad, Keonjhar, on 25.08.2023 this deponent cancelled all the 39 development works and on 05.09.2023, the fresh tenders have been issued by this deponent through on- line instead of off-line. Technical issues as specified above, the Tender Call Notice bearing Bid Identification No.TCN No.01/ Sadar/ 2023-24, No.2715/ Dev/ dtd.17.07.2023 was cancelled and the fresh tenders have been invited through on-line. All other allegations/averments made paragraph are hereby disputed and denied.” in this 9. However, the reasons assigned in the counter affidavit, as quoted above, cannot be accepted as the notice dated 25.08.2023 under Annexure-5, which was issued cancelling the TCN dated 17.07.2023, does not satisfy the requirement for cancellation of tender. The notice impugned does not indicate the reason for which the TCN has been cancelled, rather, by way of filing counter affidavit, reasons cannot be supplemented or supplanted to the notice 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 Page 4 of 6 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: “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.” In Commissioner of Police, Bombay v. 8. 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.” 10. In view of such position, this Court is of the considered view that since no reasons have been assigned in the notice dated Page 5 of 6 25.08.2023 under Annexure-5, while cancelling the TCN, and reasons stated in the counter affidavit justifying the action of the Opposite Party No.4 in cancelling the TCN being not sustainable, the notice dated 25.08.2023 under Annexure-5 cannot be sustained and the same is liable to be quashed and is hereby quashed. The matter is remanded to Opposite Party No.4 to pass appropriate order in accordance with law in compliance with the principles of natural justice. 11. The writ petition is disposed of in the above terms. Issue urgent certified copy of this order as per rules. ACTING CHIEF JUSTICE (DR. B.R. SARANGI) S.K. Guin/PA (M.S. RAMAN) JUDGE Signature Not Verified Digitally Signed Signed by: SUBASH KUMAR GUIN Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 10-Jan-2024 09:21:33 Page 6 of 6