Orissa High Court
Case Details
ORISSA HIGH COURT: CUTTACK W.P(C) NO. 35185 OF 2022 In the matter of an application under Articles 226 and 227 of the Constitution of India. --------------- AFR Bhubaneswar ..… Petitioner EGlobetech India Pvt. Ltd., -Versus- State of Odisha & Ors. ….. Opp. Parties For Petitioner : Mr. S. Palit, Sr. Advocate along with M/s. A. Mishra, A. Kejriwal, A. Parija, S. Bose & A. Pradhan, Advocates For Opp. Parties : Mr. P.P. Mohanty, Addl. Govt. Advocate [O.Ps.No.1-3] Mr. M. Kanungo, Sr. Advocate along with Mr. S.R. Mohanty, Advocate [O.P.4] P R E S E N T: THE HONOURABLE DR. JUSTICE B.R.SARANGI AND THE HONOURABLE MR JUSTICE B.P. SATAPATHY DECIDED ON: 17.01.2023 // 2 // DR. B.R. SARANGI,J. The Petitioner, by means of this writ petition, seeks to quash the order dated 15.12.2022 under Annexure-6, as well as the Tender Call Notice No.4059 dated 30.11.2022 under Annexure-5 issued by opposite party no. 3-Tahasildar, Gondia, and further to issue direction to opposite parties no.1 to 3 to conduct a fresh tender after providing sufficient individual notice to all the earlier bidders, who participated in the previous tender process, pursuant to tender call notice dated 29.06.2020. 2. The factual matrix of the case, in a nutshell, is that the Tahasildar, Gondia-opposite party no.3 issued Tender Call Notice dated 29.06.2020 inviting tenders for grant of “Nihal Prasad Morrum Quarry” on long term lease of five years. Pursuant thereto, the petitioner and opposite party no.4 were potential bidders. Opposite party no.4 had quoted the highest rate of additional charge, i.e. Rs.467/- per cum, but he was not declared as successful due to submission of incomplete application. Therefore, the petitioner, being the second highest bidder, was declared as successful, // 3 // for having quoted additional charge of Rs.315/- per cum. The petitioner was issued with a letter dated 31.08.2020 to deposit security money amounting to Rs.11,55,000.00. In the said letter, it was further stated that since the petitioner had already deposited Rs.2,10,000/- as earnest money in the shape of demand draft, it was to deposit the rest amount of Rs.9,45,000.00 as security money. In response to the said letter, the petitioner deposited the aforesaid amount and was issued with a money receipt on 02.09.2020. 2.1 Then, opposite party no.4 filed W.P.(C) No.21744 of 2020 and this Court, vide order dated 04.09.2020, disposed of the said writ petition holding that the action of the opposite party-authorities in rejecting the bid of opposite party no.4 cannot be said to be unjust and illegal and it would not be appropriate to direct the opposite party-authorities to settle the quarry in question in favour of opposite party no.4, even though he was the highest bidder. Opposite party no.4 assailed the said order before the apex Court by preferring Civil
Legal Reasoning
Appeal No.6990 of 2022 arising out of SLP (C) No.13876 // 4 // of 2020 and the apex Court, vide order dated
Decision
27.09.2022, disposed of the said case with the following direction:- “7. In the peculiar facts and circumstances of the case on record, where the original grant of lease was to take effect from June, 2020 for a period of five years and a result of the pendency of the matter before this court nothing has been worked with respect to said quarry, we deem it appropriate to pass the following directions: The concerned Authority shall re-advertise (a) and issue fresh tender call notice for grant of lease for appropriate period. All the concerned, including the appellant (b) as well as respondent No.4 herein, shall be entitled to make the claim after following all due process. The contract shall be awarded to the (c) successful parties purely in accordance with law”. In compliance thereof, opposite party no.3 issued fresh advertisement vide Annexure-5 dated 30.11.2022 for grant of “Nihal Prasad Morrum Quarry” on lease for the relevant period, pursuant to which opposite party no.4 has quoted the additional charge as Rs.82.27 per cum making a vast difference of Rs.232.73/- per cum, which is unreasonably lower than the bid offered by the petitioner in previous bid causing loss to the State Exchequer. Therefore, opposite party no.3 does not have any valid justification for accepting such an // 5 // unreasonably low bid in a subsequent bidding conducted in compliance of order dated 27.09.2022 passed by the apex Court without refunding the security money of the petitioner. Hence, this writ petition. 3. Mr. S. Palit, learned Senior Counsel appearing for the petitioner contended that the sole contention of opposite party no.4 before the apex Court was that in the event the bid is settled in favour of the petitioner, pursuant to earlier tender call notice, the State Exchequer would put to loss because of the price quoted by the petitioner. It is also contended that opposite party no.4 had quoted Rs.467/- per cum as additional charges, whereas the petitioner had quoted Rs.315/- per cum. Pursuant to order dated 27.09.2022 passed by the apex Court in Civil Appeal No.6990 of 2022 arising out of SLP (C) No.13876 of 2020, when a fresh auction notice was issued, the very same opposite party no.4 quoted Rs.82.27 per cum causing colossal wastage of public money and, as such, there is a clear case of cartel between the officer and the bidder, who are in the helm of affairs putting the Government source into auction. It // 6 // is contended that pursuant to earlier tender call notice, once opposite party no.4 quoted Rs.467/- per cum as additional charges, how could he quote Rs.82.27 per cum as the additional charges for the selfsame source, pursuant to fresh auction conducted by opposite party no.3 in compliance of order dated 27.09.2022 passed by the apex Court. This fact having come to the knowledge of the petitioner, in favour of whom, pursuant to earlier tender dated 29.06.2020, the source was settled and the security amount was deposited before the authority, it has approached by means of this writ petition bringing to the notice of this Court as to how the Government sources are put to auction by the officers of the State by affecting the Government revenue. Therefore, the petitioner seeks for interference of this Court. 3.1 It is further contended that the petitioner was not a bidder pursuant to the second tender call notice dated 30.11.2022 issued by the Tahasildar, Gondia. Looking at the very low price fixed by the Tahasildar, Gondia, petitioner desisted himself from participating in the auction, since earlier bid of the petitioner was // 7 // accepted at Rs.315/- per cum as additional charges. It is further contended that even though the petitioner is not a bidder to the second tender call notice, but its bid, pursuant to earlier tender call notice, was accepted and it had deposited the requisite amount, which has not been refunded as on the date of issuance of the fresh tender call notice on 30.11.2022 or as yet and, as such, the earlier bid has not been cancelled while issuing second tender call notice on 30.11.2022. Therefore, the petitioner did not participate in the tender process, in pursuance of the second tender call notice dated 30.11.2022 issued by the Tahasildar, Gondia. 4. Mr. P.P. Mohanty, learned Additional Government Advocate appearing for the State-opposite parties contended that since the petitioner has not participated in the tender process, pursuant to the second tender call notice dated 30.11.2022, it has no locus standi to file the writ petition and, as such, the petitioner is not a bidder to the said tender call notice. // 8 // 5. Mr. M. Kanungo, learned Senior Counsel appearing along with Mr. S.R. Mohanty, learned counsel for opposite party no.4 contended that opposite party no.4 is the successful bidder having quoted Rs.82.27 per cum as additional charge. In the event any order is passed by this Court, it will cause prejudice to him and, as such, it is contended that opposite party no.4 was the highest bidder, pursuant to earlier tender call notice issued by the Tahasildar, Gondia, by quoting Rs.467/- per cum as additional charges, but his bid was not accepted because of defective application and the source was settled in favour of the second highest bidder, namely, the present petitioner. Therefore, pursuant to second tender call notice dated 30.11.2022, when opposite party no.4 participated and quoted Rs.82.27 per cum, the source is to be settled in his favour. Since opposite party-authority is going to settle the source by following the due process of law, the same cannot be called in question in this writ petition. Therefore, this Court may not interfere with the process of tender issued by the Tahasildar, Gondia // 9 // 6. This Court heard Mr. S. Palit, learned Senior Counsel appearing for the petitioner; Mr. P.P. Mohanty, learned Additional Government Advocate appearing for the State-opposite parties and Mr. M. Kanungo, learned Senior Counsel appearing along with Mr. S.R. Mohanty, learned counsel for opposite party no.4 in hybrid mode. Pleadings have been exchanged between the parties and with the consent of learned counsel for the parties, the writ petition is being disposed of finally at the stage of admission. 7. The factual matrix, as narrated above, clearly depicts as to how and in what manner the power vested with the authority to be discharged statutorily has been usurped. As such, the State authorities are vested with the power to save the exchequer of the State, which is nothing but the properties of the State, but, in the instant case, the same have been utilized in such a manner causing colossal wastage of State exchequer. Meaning thereby, with eyes wide open in the broad day light illegalities have been committed by the statutory authority. // 10 // 8. In Rajasthan Housing Board v. G.S. Investment, (2007) 1 SCC 477, the apex Court held that even if some defect was found in ultimate decision resulting in cancellation of the auction, the Court should exercise its discretionary power under Art. 226 of the Constitution of India with great care and caution and should exercise it only in furtherance of public interest. The Court should always keep the larger public interest in mind in order to decide whether it should interfere with the decision of the authority. The case at hand is coming under one such category, which is apparent on the basis of factual matrix delineated above. Therefore, in exercise of power under Art.226 of the Constitution, in furtherance of public interest this Court examines the action taken by the authority while conducting the auction of State largesse. 9. In Raunaq International Ltd. v. I.V.R. Construction Ltd., (1999) 1 SCC 492 : AIR 1999 SC 393, the apex Court held that the elements of public // 11 // interest are- (1) public money would be spent for the purposes of contract; (2) the goods or services which are being commissioned would be for a public purpose, e.g., construction of roads, public building, etc.; (3) the public would be directly interested in timely fulfillment of the contract so that the public may receive service expeditiously; and (4) the public would also be interested in the quality of work. 10. In S. Ramanathan v. Union of India, (2001) 2 SCC 118, the apex Court held that if statutory power is vested in an authority, requirements of law have to be complied with in exercising the power. 11. In Punjab Communications Ltd. v. Union of