RADHAMOHAN PATRA v. STATE OF ORISSA — 1991 DIGILAW 405 (ORI)

G. B. PATNAIK, J. ( 1 ) THE petitioner who was one of the tenderers for the work"widening and strengthening of N. H. 43 from K. M. 322/0 to 329/0 in the district of Koraput in Orissa" has moved this Court invoking the extraordinary jurisdiction under Articles 226 and 227 of the Constitution alleging that the opposite parties illegally did not consider the tender papers of the petitioner. The petitioner avers that the tender call notice was published in the daily "samaj" inviting tenders in prescribed form from the eligible registered special class contractors in respect of the work in question. Several details had been given in the notice itself and it was indicated that the completed tender documents in Cover-I and Cover-II should be received in the office of the Chief Engineer, National Highways, Orissa, Bhubaneswar, by 3. 00 p. m. on 28-6-1991 and Cover-I would be opened at 3. 45 p. m. on the same day, i. e. 28-6-1991 in the presence of the tenderers or their authorised agents. It was specifically mentioned in the said tender call notice that the tenders received after the due date and time would not be entertained and the department would not take any responsibility for postal delay or loss in transit in case of postal tendering. It is the case of the petitioner that he complied with all the formalities after purchasing the tender papers on 20-6-1991 and after duly filling in the papers, the petitioner despatched the two envelopes marked as Cover-I and Cover-II by a Courier service, namely Dolphin Service on 26-6-1991. The petitioner had mentioned on the covers "tender documents to be delivered before 2. 00 p. m. on 28-6-1991". According to the petitioner, the two envelopes were delivered in the office of opposite party No. 2 on 28-6-1991 at about 12. 50 p. m. and yet those were not taken into consideration on the ground that they were received at 3. 10 p. m. The petitioner came to know about non-consideration of his tender papers on 16-7-1991 and he made a representation on 19-71991 to opposite party No. 2. Since the matter was not re-considered, the petitioner was compelled to move this Court. The petitioner further avers that he has reliable information that the amount mentioned in his tender was lower by Rs. Since the matter was not re-considered, the petitioner was compelled to move this Court. The petitioner further avers that he has reliable information that the amount mentioned in his tender was lower by Rs. 15 lakhs from the amount which has been accepted and yet his papers were purposely kept out of consideration by putting a time on the tender papers to the effect that the same were received at 3. 10 p. m. The petitioner has annexed the two acknowledgments which the office of opposite party No. 2 had given to the Courier as Annexures 4 and 5 which bear the seal of the office as well as the date and signature of the person receiving the packet, but does not bear any time of delivery. The petitioner has also annexed the certificate (Annexure-6) wherein the person who went and delivered the packets has written that he had delivered the packets at 12. 50 p. m. on 28-6-1991. ( 2 ) ). When the matter was listed for admission on 27-9-1991, we had called upon the State Counsel to produce the tender papers of the petitioner. On 30-9-1991, the tender papers were produced by the learned Additional Government Advocate and we noticed that on the covers of the two envelopes, there was an endorsement to the effect "received at 3. 10 p. m. ". We, therefore, called upon the learned Additional Government Advocate to file a counter affidavit so that the writ application could be disposed of. ( 3 ) THE State has filed a counter affidavit being sworn to by opposite party No. 2 and the stand taken in the said counter affidavit is that as the tenders of the petitioner were received after due time, the same were not taken into consideration. It has been further stated that the tender box was itself open till 3. 00 p. m. and yet the fact that the tender papers were not put inside the box intrinsically indicates that the Courier finding the box to be closed and sealed delivered the same to Shri Fakir Charan Pati, the Senior Diarist of the office who had mentioned the time of receipt on the covers. According to the deponent of the counter-affidavit, it was not necessary to give the time on the acknowledgment receipts and, therefore, Annexures 4 and 5 do not bear any time. According to the deponent of the counter-affidavit, it was not necessary to give the time on the acknowledgment receipts and, therefore, Annexures 4 and 5 do not bear any time. Shri Fakir Charan Pati, the Senior Diarist of the office of the Chief Engineer, has also filed an affidavit stating therein that he received the two packets from a messenger of Dolphin Service on 28-6-1991 at 3. 10 p. m. and as he found that those were the two tender papers he immediately handed over the same to the Superintending Engineer Shri B. C. Hota, who was authorised by the Chief Engineer to open the tender papers. The original tender papers with the covers were also produced before us and on scrutiny we find that those two packets bear the signatures of Shri Pati with the time of receipt to be 3. 10 p. m. as well as the endorsement of Shri B. C. Hota, the Superintending Engineer, that the tenders cannot be considered being received beyond time. ( 4 ) THE successful tenderer made an application to this Court for intervention and the prayer for intervention was allowed. The said intervener has also filed an affidavit. It has been averred therein that he was present both at the time of closing and opening of the tender box and the two covers sent by the petitioner had been recorded to have been received in the office of opposite party No. 2 at 3. 10 p. m. It is his further assertion that when tender box was opened at 3. 45 p. m. , an employee of opposite party No. 2 produced the tender papers of the petitioner which contained the endorsement that the same were received at 3. 10 p. m. and, therefore, all the tenderers present including the deponent filed a protest petition requesting not to open the covers sent by the petitioner as the papers could not be taken into consideration being received beyond the stipulated time and the Chief Engineer, therefore, did not open the covers-I and II sent by the petitioner. The said representation filed by the deponent along with all the tenderers present has been annexed as Annexure-A/3. The said representation filed by the deponent along with all the tenderers present has been annexed as Annexure-A/3. ( 5 ) THE dispute that arises for consideration, therefore, is whether on the materials produced, it is possible for the Court to come to the conclusion that the tender papers of the petitioner were, in fact, received much before the due time, but only to ignore the same from consideration, a time of receipt was put to be 3. 10 p. m. mala fide and accordingly the papers were kept out of consideration. Mr. Palit appearing for the petitioner argues with great force that since the acknowledgments given to the Courier by the person concerned who received the packets, annexed as Annexures 4 and 5 do not bear any time on the same and since the Courier itself has given the report as per Annexure-6 that the packets were delivered in the office at 12. 50 p. m. , it would be open for this Court to come to a conclusion that in fact the tender papers were delivered before due time. The learned Advocate General appearing for opposite parties 1 and 2 and Mr. K. N. Jena appearing for the intervener, on the other hand, contends that in view of the affidavit of Shri Pati clearly stating that he received the tender papers at 3. 10 p. m. and the endorsements made on the documents to the effect that the packets were received at 3. 10 p. m. and the further endorsement of the Superintending Engineer that those cannot be considered being received late as well as the fact that the tenderers themselves made a representation as per Annexure-A/3, it must be held beyond doubt that the tender papers were received beyond time. It has been further argued that at any rate it is a disputed question of fact which cannot be gone into by this Court in a writ applications. ( 6 ) THE only document that is produced on behalf of the petitioner to indicate that the papers were delivered before due time is the report of the Courier, annexed as Annexure-6. To our query, Mr. ( 6 ) THE only document that is produced on behalf of the petitioner to indicate that the papers were delivered before due time is the report of the Courier, annexed as Annexure-6. To our query, Mr. Palit appearing for the petitioner states that the said report is not a contemporaneous document namely that it had not been made at the time of delivering the packets, but it was so given on being required by the petitioner as to when the packets were in fact delivered. A bare reading of the document (Annexure-6) also reveals that the person who went with the packets has made that report possibly to create an evidence for the case in hand, inasmuch as no Courier could make such endorsement as has been stated in the document (Annexure-6 ). If Annexure-6 would have been a contemporaneous document, it might have thrown some light as to the actual time when the packets were delivered, but the same having been given to the petitioner on his query letter only after petitioner came to know that his tender papers had not been considered, the document loses all its importance and significance. At any rate, the document is one given by the Courier who had the responsibility of delivering the packets before 2 p. m. on 28-6-1991 and in that sense it would be a self-serving document on the part of the Courier to indicate that the packets were delivered in due time. The person who delivered the packets has also not chosen to file any affidavit in this Court. As against this on behalf of the opposite parties the person who received the packets and has made the endorsement on the documents to the effect that the packets were received at 3. 10 p. m. has filed an affidavit and opposite party No. 2 also has filed an affidavit. That apart, Annexure-A/3 is a representation of the tenderers to the opposite party No. 2 which had been contemporaneously made to exclude the two tender covers sent by the petitioner from consideration on the ground that those were received late. In that view of the matter, it is not possible for this Court to come to a conclusion that the tender papers of the petitioner were received by opposite party No. 2 in due time and yet the same were kept out of consideration. In that view of the matter, it is not possible for this Court to come to a conclusion that the tender papers of the petitioner were received by opposite party No. 2 in due time and yet the same were kept out of consideration. As has been stated earlier, it was one of the terms and conditions of the tender call notice that if the papers would he received beyond the date and due time, the papers would not be considered and, therefore, there is no infirmity on the part of opposite party No. 2 in not considering the petitioner's tender papers on the ground that the same were received after the due time. ( 7 ) ). Mr. Palit appearing for the petitioner then urges that the petitioner's tender amount being lower than the amount tendered by the intervener which has been finally accepted by about Rs. 15 lakhs, the public exchequer should not suffer to that extent and that should also be a vital consideration for the Court in coming to the conclusion whether the petitioner's tender papers should be taken into consideration or not. In support of this contention reliance has been placed on the Bench decision of this Court in the case of Inder Singh Soni v. State of Orissa, OJC No. 777 of 1990, disposed of on 4-5-1990. The learned Advocate General, on the other hand, contends that for maintaining the sanctity of the tender call system if the Court comes to the conclusion that the petitioner's tender papers were received beyond time, then no direction should be issued to consider those papers even if the amount tendered by the petitioner is lower by Rs. 15 lakhs and such a process will increase corruption and rival competitors would be free to give tender on seeing the amount already given by other competitors after the tender papers are opened. It is not disputed that it has been clearly mentioned in the tender call notice that the tender papers will be received till 3. 00 p. m. on 28-6-1991 and papers received beyond the due date and due time will not be taken into consideration. It is not disputed that it has been clearly mentioned in the tender call notice that the tender papers will be received till 3. 00 p. m. on 28-6-1991 and papers received beyond the due date and due time will not be taken into consideration. The object of calling for tender is giving an opportunity to the rival competitors in the trade to give their offer in respect of the work in question, one not knowing the offer of the other so that the competent authority will take a final decision with regard to the acceptance of any one of them. In this view of the matter, to consider the offer of a tenderer who did not give the offer within the time on the ground that the said offer is lower than the rate accepted by the competent authority would obviously frustrate the sanctity and object of the tender call system. In the circumstances, we are persuaded to accept the submission made by the learned Advocate General that no direction should be given to consider the tender papers of the petitioner which have been found by us to have been received beyond time, only because the amount tendered is lower by Rs. 15 lakhs and that would destroy the sanctity of the tender call system. We have also considered the judgment of this Court in Inder Singh Soni's case (supra), on which Mr. Palit for the petitioner places reliance, but we do not find any ratio in that case that any direction had been given to consider the tender on the ground that the tender of the petitioner was lower than the tender of the person whose tender had been accepted, though as a fact it had been mentioned that the tender of the petitioner in that case was lower. But in that case, this Court came to the conclusion that in the facts and circumstances, the petitioner was not required to deposit the earnest money along with his tender and, therefore, the tender of the petitioner did not merit rejection on that ground. On the aforesaid conclusion, the Court directed to consider the petitioner's tender which was held to be valid in the eye of law. We fail to appreciate as to how this decision will in any way assist the petitioner's case. On the aforesaid conclusion, the Court directed to consider the petitioner's tender which was held to be valid in the eye of law. We fail to appreciate as to how this decision will in any way assist the petitioner's case. We have already come to the finding that it is not possible for us to come to the conclusion that the tender papers were received in due time and it is conceded that it was one of the stipulations in the tender call notice that tender papers received after the due date and due time would not be taken into consideration. Thus, the petitioner's tender papers cannot be held to be valid in law. In the premises, as aforesaid, we have no hesitation to reject the second submission of Mr. Palit appearing for the petitioner. ( 8 ) NO other contention having been raised, the writ application fails and is dismissed. The interim order stands vacated. There will, however, be no order as to costs. ( 9 ) ). D. M. PATNAIK, J. :- I agree. Writ application dismissed.