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2000 DIGILAW 267 (ORI)

NARENDRA v. SPECIAL RELIEF COMMISSIONER, ORISSA

2000-05-12

B.P.DAS, P.C.NAIK

body2000
P. C. NAIK, J. ( 1 ) THE prayer of the petitioners in O. J. C. Nos. 14592 and 14722 of 1999, O. J. C. Nos. 173, 211, 247, 463, 1656, 1872 and 2639 of 2000 is to issue direction to the opposite parties, in particular, the Special Relief Commissioner, Orissa, to accept the goods which were tendered by them in conformity with the terms of Advertisement No. 315/f dated 26-11-1999 (Annexure 1 ). ( 2 ) THE prayer of the petitioner in O. J. C. No. 14780 of 1999 is for issuance of a direction to the opposite parties to take samples in presence of the petitioner or his representative and to get them tested or retested and to accept the same, if they conform to the specification laid down in Advertisement No. 315/f dated 26-11-1999 (Annexure 1) and further to command the opposite parties not to test the goods in question on the basis of any specification other than those prescribed in the said advertisement. ( 3 ) SIMILARLY, the prayer of the petitioners in O. J. C. Nos. 689, 712, 724 and 1694 of 2000 is to take the samples and test the same only in accordance with the norms prescribed in the Advertisement, referred to above, and to accept the goods tendered by them. ( 4 ) IN O. J. C. No. 1243 of 2000, the petitioner has prayed for quashing the resolution whereby an additional specification, namely, tensile strength is prescribed and the corrigendum to Office Order No. 155 dated 8-1-2000 whereby out of the 40 trucks of polythene supplied by the petitioner, 29 trucks were declared to have failed the test and also for declaring that the goods brought by the truck bearing Regn. number OR-O2-D-4535 to have passed the test. ( 5 ) THUS, in substance, the main prayer in all these writ applications is for a direction to the opposite parties, in particular, the Special Relief Commissioner, Orissa, to draw samples of goods tendered by the petitioners strictly in accordance with the specification prescribed in Advertisement No. 315/f dated 26-11-1999, put them to test and accept those goods which passed the said test. In other words, what is alleged is that the requirement of testing the material for the tensile strength should not be insisted upon. In other words, what is alleged is that the requirement of testing the material for the tensile strength should not be insisted upon. Additionally, in one of the writ petitions (O. J. C. No. 1243 of 2000), a prayer is made that if any consignment has been rejected for not having the tensile strength, the Special Relief Commissioner be directed to accept the same if it is in conformity with the specification laid down in the Advertisement, referred to above. ( 6 ) BEFORE proceeding further, we may mention that since counter-affidavits were filed in three writ petitions, namely, O. J. C. Nos. 14592 and 14722 of 1999 and O. J. C. No. 463 of 2000, and it was agreed to by the learned counsel for the parties in the other connected writ petitions that the same may be accepted as the counter-affidavit in the other connected cases and so stated by the State counsel, the said counters are being treated as the counters to the other connected matters. ( 7 ) THE petitioners in all these writ applications have a common grievance against the Special Relief Commissioner, Orissa (in short SRC) who, according to them, has adopted a discriminatory and unreasonable attitude in accepting the polythene rolls and sheets supplied through the Principal Resident Commissioner, New Delhi (in short, 'prc'), Orissa Small Industries Corporation (in short, 'osic'), and Orissa Consumer Co-operative Federation (in short, 'occf') and by refusing to accept the material supplied by the petitioners which, according to them, conform to the specification laid down in Advertisement No. 315/f dated 26-11-1999 published in different newspapers (Annexure 1 to the writ applications ). ( 8 ) THE background leading to the filing of these writ applications may be briefly stated thus. Many parts of the State were devastated by the super-cyclone which hit coastal Orissa on the 29th day of October, 1999. It was of such high velocity that it destroyed the lives and properties and hundreds and thousands of people were rendered homeless having the open sky as the only roof over their heads. In order to provide some shelter to these helpless persons, a decision was taken by the State Government to procure polythene rolls and sheets for the purpose of being used as temporary shelter. The entire relief operation was to be monitored by a high officer of the State designated as the Special Relief Commissioner. In order to provide some shelter to these helpless persons, a decision was taken by the State Government to procure polythene rolls and sheets for the purpose of being used as temporary shelter. The entire relief operation was to be monitored by a high officer of the State designated as the Special Relief Commissioner. A decision was taken for procurement of polythene. As it appears from the record, various steps were taken by the SRC. Some procurement was made through the PRC, some through OSIC and some through OCCF and some other through National Consumers Co-operative Federation (in short, 'nccf' ). Packing India, Jagatpur, Cuttack and Friends Order Supply and Co-operative Society, Nadia, West Bengal, and orders were placed with them. That apart, an advertisement was published by the SRC in the National dailies and different newspapers of the State for supply of polythene rolls and sheets and blankets by private/individual suppliers for distribution to the cyclone/flood affected people of the State. The items, specification, rate and quantity to be supplied were as under :-"sl. No. Item to be suppliedspecificationratequantity to be supplied 1 (a) Polythene Rolls/sheetsthickness. . 1000 guage, or 250 micronrs. 74 per Kg. Length. . 40 Mtr. (apprx) Width. . 3. 69 Mtr. Weight. . 40 Kg. (apprx)2000 MT Colour. . No bar (50000 Rolls) Virgin materials with smooth surface. Conforming to IS :2608/84 (b) Polythene Rolls/sheets150-250 Micron of Recycled materials. Rs. 70 per Kgcolour. . No bar2 Blanket Woolen typers. 52/-500000 pieceslength. . 78" per piecebreadth. . 48" Weight. . 900 Grams The terms and conditions were also laid down and it was provided that the private/individual suppliers shall have to supply the intended material to the SRC through the Managing Director, OSIC on first come-first-served basis by the 7th day of Decemebr, 1999 at the latest. The consignment of the material was to reach the Orissa State Warehousing Corporation godown and to be received by the MD, OSIC or his authorised representative who will have over the same to the quality checking squad which was to function under the control of the Director, Export Promotion and Marketing, Orissa (in short, EPM ). The consignment of the material was to reach the Orissa State Warehousing Corporation godown and to be received by the MD, OSIC or his authorised representative who will have over the same to the quality checking squad which was to function under the control of the Director, Export Promotion and Marketing, Orissa (in short, EPM ). The said terms and conditions further provided that: polythene rolls/sheets supplied by the private/individuals by the Quality Checking Squad, the materials found to be conforming to the specification as per the advertisement will be accepted by the MD, OSIC for further necessary action on payment of claim bills by him. The materials found to be not conforming to the specification as per the advertisement will be rejected outright and the suppliers shall have to immediately take back their materials. No claim, whatsoever, will be entertained for the rejected/returned materials. " ( 9 ) IT is the case of the petitioners that in response to the advertisement, they procured polythene rolls/sheets as per the specifications laid down therein and transported the goods to Bhubaneswar. However, for reasons best known to the authorities, they avoided to take prompt action in putting the material to test in order to ascertain as to whether or not it was as per the specification laid down in the Advertisement, with the result that hundreds of trucks loaded with polythene rolls and sheets were stranded in and around the stadium. In the meanwhile, however, the SRC and others continued to receive material supplied by the PRC and OSIC which, according to the petitioners, was not subjected to any test. In substance, it is the case of the petitioners that by this act, though material not in accordance with the specification supplied by PRC and OSIC, who had in turn procured material from certain private parties, were accepted, no action was taken to accept their (petitioners) material in spite of their repeated requests made in that behalf. The inaction on the part of the authorities in huge loss to the petitioners not only because of demurrage and truck hire charges but also by way of loss of profits as they had purchased the material from outside the State on payment for being supplied to the SRC. The inaction on the part of the authorities in huge loss to the petitioners not only because of demurrage and truck hire charges but also by way of loss of profits as they had purchased the material from outside the State on payment for being supplied to the SRC. ( 10 ) A common counter has been filed by the State of Orissa, Special Relief Commissioner and Chief Secretary, Government of Orissa, on an affidavit of the Additional Commissioner (Relief), Orissa. It is averred that as per the rate contract approved by the Director, EPM and instructions of the Government in the Revenue Department, initially 2500 rolls of polythene having a width of 3658 mm (12 feet) and thickness 250 micron conforming to IS-2508 standard was purchased by SRC from EPM rate contract holder,i. e. M/s. Packing India, Jagatpur, Cuttack, at the rate of Rs. 74/- per Kg. After the severe cyclone in Ganjam district, a decision was taken to procure ten thousand rolls of polythene for distribution in the said district. But thereafter, looking to the number of the affected persons, requirement was increased to 2. 5 lakhs rolls. As the manufacturing capacity of the only EPM rate contract holder Small Industry in the State, i. e. M/s. Packing India, Jagatpur, Cuttack, was only 2 Tons or 50 rolls per day, a decision was taken and accordingly, orders were placed with three Co-operative Organizations, i. e. OCCF (a unit under the State Government), NCCF (a unit under the Central Government), M/s. Friends Order Supply and Co-operative, Society, Nadia, West Bengal, OSIC and M/s. Packing India. Jagatpur, Cuttack, for supply of 1,83,000 rolls of polythene at the EPM rate contract of Rs. 74/- per Kg. As the aforesaid agencies could not fulfil the demand, the PRC was requested to procure 1,25,000 polythene rolls from Delhi with the help of DGQ and A the Ministry of Defence and Petro Chemicals. ( 11 ) IT is specifically stated in the counter affidavit that "the Order placed with the Principal Resident Commissioner did not contemplate any testing parameters as he was requested to supply the polythene materials on emergent basis within the shortest possible time with held (sic) of DGQ and A and Ministry of Petro Chemicals, Government of India. ( 11 ) IT is specifically stated in the counter affidavit that "the Order placed with the Principal Resident Commissioner did not contemplate any testing parameters as he was requested to supply the polythene materials on emergent basis within the shortest possible time with held (sic) of DGQ and A and Ministry of Petro Chemicals, Government of India. " Subsequently, a decision was taken for procuring stocks of polythene from other sources at the rate fixed by the Director, EPM for different grades through open advertisement. A decision was also taken that spot purchase would be made from Calcutta within the ceiling of cost of polythene fixed by the Director, EPM and the MD, OSIC, Bhubaneswar, But, this proposal was dropped. After due deliberation, advertisement No. 315/f dated 26-11-1999 was published in two national newspapers and two local newspapers for purchase of polythene rolls at the rates approved by the Director, EMP for prime material, i. e. at the rate of Rs. 74/- for Kg. conforming to IS-2508/84 standard. For the recycled polythene material, the rate of Rs. 70/- per Kg was adopted. It is also averred that there was also a clause in the advertisement that the SRC reserve the exclusive right to accept or reject any offer made in pursuance of the above advertisement without assigning any reason. In order to check the quality, a Quality Checking Squad was formed comprising of the Director, EPM, Director, Textiles, Chief Manager, C. I. P. E. T. and Joint Director (Inspector) EPM which laid down a procedure for testing of polythene rolls and sheets. However, the quality checking squad opined that thickness was not the only criterion for recycled polythene material for the purpose of temporary shelter for the cyclone victims and it was recommended that besides thickness of 150-250 microns as mentioned in the advertisement No. 315/f dated 26-11-1999, the recycled polythene material should have the mainimum specifications of IS-2508/84 standard i. e. longitudinal (L. D.) tensile strength of 120 Kgf/cm2 and transverse tensile (T. D.) strength of 85 Kgf/cm2 which has also been approved by the Government. It is also admitted that orders were placed with five suppliers, namely, NCCF, OCCF, M/s. Packing India, OSCI and Friends Order Supply and Co-operative Society, Nadia, West Bengal, for a total supply of 1,33,000 rolls of polythene out of which, 64,833. 3 rolls have been supplied at the cost of 3. It is also admitted that orders were placed with five suppliers, namely, NCCF, OCCF, M/s. Packing India, OSCI and Friends Order Supply and Co-operative Society, Nadia, West Bengal, for a total supply of 1,33,000 rolls of polythene out of which, 64,833. 3 rolls have been supplied at the cost of 3. 1735 crores which amount has been paid to OSIC, as appears from the counter affidavit. It is admitted that the PRC had also taken steps for procurement of polythene rolls, who, it is alleged, after discussing the matter with various authorities, received offers from seventeen suppliers for supply of LDPE from recycled material and prime material, HDPE laminated fabrics, HDPE woven fabrics with lamination on both sides and HDPE woven and laminated fabrics within the price range of Rs. 54/-, Rs. 81/-, Rs. 83/-, Rs. 88/- and Rs. 93/- per Kg respectively and on negotiation, eleven firms agreed at the rate of Rs. 54/- per Kg. A decision was also taken by the PRC for inspection of the supplies by a team comprising representative of Orissa Government, DGQ and A, IPCL and DGS and D at the time of loading as per the following specifications: (i) Width of polythene rolls/sheets (ii) Length (iii) Weight (iv) Thickness (v) Visual check for any defects such as pin holes/cuts etc. It is however, admitted that "as the laboratory testing was neither a requirement in the order of Special Relief Commissioner to Principal Resident Commissioner dated 17-11-1999 nor was it feasible given the urgent requirement of the material at Bhubaneswar, the tensile strength of polythene materials was not tested. " (emphasis supplied ). Though it is averred that the material received through the PRC was subjected to test, it is not stated whether the tensile strength was tested or not. ( 12 ) IT has, however, come out in the counter affidavit that the Director, EPM, who is the leader of the quality checking squad, had informed that "all the polythene materials supplied by the PRC, New Delhi should be put to test in the C. I. P. E. T. The virgin polythene materials supplied by the I. P. C. E. or private suppliers should be tested as per the Indian Standards mentioned against each supply. The polythene from recycled materials should be tested as per parameters recommended by the quality checking squad. The polythene from recycled materials should be tested as per parameters recommended by the quality checking squad. The said checking squad was also requested to devise parameters for HDPE tarpaulin and test it. " But, it is stated in the counter affidavit that doubt raised by the quality checking squad in its resolution dated 10-12-1999 indicating that the material received from the PRC New Delhi significantly varying from items described at Clauses (a) and (b) of advertisement No. 315/f has already been clarified. ( 13 ) ACCORDING to the opposite parties, as the material supplied by the PRC against Order dated 17-11-1999 had no relationship with the polythene material procured by the SRC in terms of the advertisement, the parameters as per the said advertisement were not adopted; moreso, when the rate at which they were supplied was very low. But, in spite of that, the material was put to test (but which test, has not been indicated ). However, in order to avoid loss of Government revenue towards payment of detention charges, the material was despatched for distribution (which means the material was distributed without awaiting the test report ). That apart, even after the material had failed the test, the State would suffer as the material was procured against pre-payment and had already been distributed. ( 14 ) IN paragraph-7 of the counter affidavit, it is admitted that though the PRC was requested to procure 1,25,000 rolls of polythene material from New Delhi. "no specifications or testing parameters were mentioned in the request letter given by the SRC. . . . . " It is also admitted by opposite parties 1 to 3 that "the testing parameters of polythene materials supplied by the PRC New Delhi and those supplied by the petitioner are not at all comparable. "but, in order to keep record, polythene material procured and supplied by PRC, New Delhi have also been tested by the Quality Checking Squad in the Laboratory of CIPET only for record, as pre-payment had already been made by the PRC New Delhi for those material before it was despatched. ( 15 ) A counter affidavit and subsequently, a further affidavit has also been filed on behalf of the OSIC. ( 15 ) A counter affidavit and subsequently, a further affidavit has also been filed on behalf of the OSIC. In its counter affidavit dated 6-3-2000, it is averred that the only responsibility of the OSIC was to allow the trucks with material which had come to OSIC stock-yard within 7-12-1999 in response to the advertisement dated 26-11-1999 whereafter sample was to be collected by the quality checking squad. It is the further case of the OSIC that it has no role to play in testing the material except to co-operate with the quality checking squad to take necessary samples from the trucks for testing. The result of the test was displayed on a Notice Board and the material found in order was handed over to the SRC. It is the further case of the OSIC that it did not adopt any discriminatory attitude and whatever material was tendered and put to test and was accepted if that was found in order and the material which failed in the test was naturally not accepted. According to the OSIC, it had a very limited role to play in the supply of material and in fact acted like a post office, i. e. it received the trucks and handed over the same to the quality checking squad for due test and the material found to be fit was handed over to the SRC. ( 16 ) DURING pendency of the writ petitions, an application was filed by one of the petitioners (petitioner in O. J. C. No. 463 of 2000) that even subsequent to the advertisement dated 26-11-1999 and the date fixed for the supply, i. e. 7-12-1999, some orders had been placed by the SRC with the OSIC and goods accepted which were not in conformity with the advertisement and were not of the required tensile strength a specification prescribed by the SRC after issuance of the advertisement, referred to above, and a specification of non-fulfilment whereof polythene material tendered by the petitioners were, though in conformity with the specification laid down by the advertisement, was rejected. On being called upon by this Court, Shri Rabindranath Dash, M. D. , OSIC, filed an affidavit on 22-2-2000 in O. J. C. No. 463 of 2000 to the following effect:-1. That I am opp. party No. 4 in this writ application. The deponent has not purchased any polythene rolls/sheets after 7-2-2000. 2. On being called upon by this Court, Shri Rabindranath Dash, M. D. , OSIC, filed an affidavit on 22-2-2000 in O. J. C. No. 463 of 2000 to the following effect:-1. That I am opp. party No. 4 in this writ application. The deponent has not purchased any polythene rolls/sheets after 7-2-2000. 2. That, the deponent has supplied 12. 078 (twelve thousand seventy eight) rolls of polythene against the order of the Special Relief Commissioner dtd. 1-11-1999 and 28-1-2000. The aforesaid supply were not within the open advertisement dtd. 26-11-1999. 3. That, the deponent has not received any disbursement on or after 7-2-2000 for its supply. 4. . . . . . . . . . . . . . . . . " ( 17 ) ANNEXED to the further affidavit of the MD, OSIC, there are some documents indicating the sources from which polythene was procured, the status of the supplier where he was a dealer or manufacturer, the value of the material in lakhs and the period during which the goods were accepted. The annexures indicate that goods were accepted from some dealers/manufacturers upto 30-1-2000, i. e. after 7-12-1999, the date fixed in the advertisement in question. For example, one of the document which is marked Annexure-F/4 to the affidavit filed on 4-4-2000, indicates that on 28-1-2000 an order was placed by the SRC for supply of 12000 rolls of polythene valued over Rs. 3,00,00,000/- and that the goods were accepted on 30-1-2000. ( 18 ) WE may now make a reference to some of the relevant annexures which form part of the counter affidavit filed by opposite parties 1, 2 and 3, Annexure-E/1 dated 1-11-1999, a letter of the Deputy Secretary, Relief, Govt. of Orissa, Bhubaneswar, addressed to M/s. Packing India, Jagatpur, Cuttack, M/s. OCCF Ltd. , Bhubaneswar, M/s. NCCF Ltd. , Cuttack Branch, Cuttack and OSIC Ltd. , Cuttack, for supply of black polythene rolls. As per the terms and conditions, supply of polythene rolls should be of black colour of superior quality having Thickness 1000 Gauge/250 micron, Length 40 meters (approximately), width 12 (3. 69 meters), Weight 40 Kg (approximately) per roll. Annexures-E/2, E/4 and E/6 are also such letters to different suppliers. But, the requirement of tensile strength is not mentioned in any of these letters. 69 meters), Weight 40 Kg (approximately) per roll. Annexures-E/2, E/4 and E/6 are also such letters to different suppliers. But, the requirement of tensile strength is not mentioned in any of these letters. So also in his letter (Annexure-E/7) addressed to the PRC, the SRC has not indicated the requirement of tensile strength. ( 19 ) ANNEXURE-I to the counter, which is a note of the Additional Relief Commissioner, clearly indicates that while placing Orders with M/s. Packing India Ltd. , Jagatpur, Cuttack, M/s. OCCF Ltd. , Bhubaneswar, M/s. NCCF Ltd. , Cuttack Branch, Cuttack and the OSIC, Cuttack, M/s. Friends Order Supply and Co-operative Society, Nadia, W. B. , no detailed quality specifications were mentioned while offering the rate of Rs. 74/- per Kg. except stating the colour to be black, superior quality, having thickness of one thousand guage/250 micron, length 40 meters (apprx.) and width 3. 69 meters; that out of the Order placed for 1,33,000 rolls, only 60,600 rolls were supplied till 30-11-1999 which was the deadline meant for the supply, major part whereof were despatched. These were not put to quality check as per the parameters laid down by the CIPET and as such it was not known whether or not they conform to the quality. It further indicated that the Director of Textiles intimated that the Director, EPM had drawn samples from 30 trucks which were loaded with 56,609 rolls for distribution and it was found that out of the thirty samples taken, only five samples were in conformity with the quality parameters laid down for material for which Rs. 70/- per Kg. was the price fixed. The notes further indicate that the polythene tendered for acceptance in terms of the advertisement should be subject to strict quality control by the quality checking staff and if it fails to conform to the standard laid down including the tensile strength, it would be rejected. It was suggested that for the balance requirement after the 7th of December, 1999, Government can place orders with the OSIC because the M. D. , OSIC had given a commitment for procuring prime material within a period of fortnight from 8th of December, 1999 at the rate of Rs. 74/- per Kg. ( 20 ) ANNEXURE-M relates to 69 truckload of polythene rolls received through the PRC. 74/- per Kg. ( 20 ) ANNEXURE-M relates to 69 truckload of polythene rolls received through the PRC. It discloses that full payment had already been made for the stock by the PRC. Even if the stock is put to quality inspection and does not pass the same, it may not be feasible to return any part of the said stock as payment has already been made. Therefore, the results of quality inspection would be only for the purpose of record. It was, therefore, proposed that pending test, the polythene may be despatched for distribution, or else, demurrage will be required to be paid for detention of the trucks. ( 21 ) ANNEXURE-N is letter of the Directorate of Export Promotion and Marketing, Orissa which indicates that in response to the advertisement, 373 trucks loaded with polythene were received in the godown for drawal of samples and testing thereof. That apart, samples were also drawn from 30 trucks which were received prior to the advertisement. Out of the samples taken from 403 trucks, only 74 trucks (70 trucks in respect of open advertisement and 3 trucks prior to the advertisement) carrying recycled materials had passed the test. ( 22 ) IN view of the submission that was made that different standards were being adopted for accepting polythene supplied by the petitioner though the material supplied by the PRC and OSIC and others were accepted without subjecting them to the strict quality test, we had asked the State counsel that an officer having technical expertise in the testing may be kept present in Court. Accordingly, on 14-1-2000 Dr. S. K. Nayak, Chief Manager, CIPET appeared before us. On being asked. Dr. Nayak informed the Court that only those samples which were forwarded to the Laboratory were tested. Those were sent under a Code number and were tested in presence of the representative of the EPM and a report was given indicating the code number therein. The tests made were on the basis of the specific requisition of a particular test and only that particular test was carried out. To a query raised by us, he stated that the thickness alone cannot be the basis to judge the quality of the material. A sample copy of the requisition received along with the sample was placed before the Court. To a query raised by us, he stated that the thickness alone cannot be the basis to judge the quality of the material. A sample copy of the requisition received along with the sample was placed before the Court. From a reading thereof we found that the Laboratory was requested "to do only Thickness (150-250 micron) and Tensile Strength (Longitudinal/transverse) of the above samples, as per the previous order. " On being further asked, Dr. Nayak stated that in the requisition, there was no indication given by the authorities as to whether the enclosed material were virgin or recycled and as this determination was not required, no such test was carried out. In view of the foregoing submissions, we were of the opinion that an independent agency may inquire into the matter and submit its report to the Court so that a proper adjudication can be made in this case and accordingly, the Superintendent of Police, C. B. I. was called upon to inquire into the matter on that particular aspect. Pursuant to the order of the Court dated 14-1-2000 wherein a reference has been made to the supplies by the PRC which were to be looked into, the PRC has filed an affidavit. ( 23 ) IN the affidavit filed by the PRC, it has been stated that he did not procure and supply any polythene in response to the advertisement No. 315/f dated 26-11-1999 a reference to which is made in the Court's Order dated 14-1-2000 and that no polythene was purchased after publication of the said advertisement. It is stated that he had procured the material in two phases, i. e. 31-10-1999 to 5-11-1999 and 19-20-11-1999, on being authorised by the Chief Minister and the Revenue Minister and the Chief Secretary to Government of Orissa to do so. Accordingly a meeting was convened and after due deliberation, steps were taken to organize procurement and despatch of essential relief material including polythene to the affected areas. Accordingly a meeting was convened and after due deliberation, steps were taken to organize procurement and despatch of essential relief material including polythene to the affected areas. With regard to the choice of quality of material polythene, it is stated that neither the State Government nor the Ministry of Agriculture, Government of India, had specified any particular quality of polythene required by the State as temporary shelter material and the choice of the office for obtaining black polythene from recycled/reprocessed material was by taking into consideration several factors including the fact that that was the type of material used by the slum dwellers in Delhi for roofing their "juggies". It is further stated therein that procurement at the second place was in view of the repeated requests of the SRC and the polythene from recycled material of 200-250 micron was procured at a uniform lowest rate of Rs. 54/- per Kg. and polythene for prime material was purchased from IPCL at a special rate of Rs. 75/- per Kg. as against their normal price of Rs. 93/- per Kg. In order to ensure despatch of quality material, a team comprising the representative of the PRC, DG and SD and DGQA. Government of India, was positioned at the loading point to inspect the material for its quality in relation to sample approved and the consignments were checked at the time of loading. It is, however, admitted that the PRC's office did not carry out any specific test of Laboratory nature in its earlier procurement during October 31 - November 5, 1999 because of the emergent nature of procurement, no such testing could have been contemplated nor did the State Government on receipt of the sample raise any objection thereto. Even after issuance of the advertisement, the terms and specifications laid down therein were not brought to the notice of the PRC nor did any one including the SRC inform the PRC about the sampling of other material and to subject the same to laboratory test. It is also stated that as the procurement was with the assistance of the DGQA, Government of India, which had much better experience of procurement of actual temporary roofing material in commercial term, there would be no further need for justification of reason for subjecting the same material to the laboratory test again at Bhubaneswar after a lapse of time. It is also stated that as the procurement was with the assistance of the DGQA, Government of India, which had much better experience of procurement of actual temporary roofing material in commercial term, there would be no further need for justification of reason for subjecting the same material to the laboratory test again at Bhubaneswar after a lapse of time. In the said affidavit, it is reiterated that as the materials were not supplied in response to the advertisement, there was no question of subjecting the same to any further test nor could the supplies be brought with the zone of consideration in these writ applications before this Court. ( 24 ) WE may observe that though the PRC has been impleaded as opposite party No. 10 in two writ applications, namely, O. J. C. Nos. 1656 and 1872 of 2000. he has not thought it proper to file a counter in any of those cases. However, as the Court, in one of its interim directions in O. J. C. No. 14722 of 1999, asked the C. B. I. to collect the sample of polythene supplied through the PRC, the PRC has filed an affidavit in the said case, in the nature of an objection petition to the said direction. ( 25 ) THE case of the petitioners is that in the advertisement in question the terms and conditions specified were laid down, both with respect to virgin material and with respect to recycled material. All what was expected of the authority was to subject the material to a test for ascertaining whether or not it fulfilled the requirement with regard to the thickness, length, width and weight. As these were the only specifications prescribed, no other specification could be imposed for testing the material as no corrigendum to the said advertisement was issued with regard to some additional specifications nor was it ever notified that the polythene tendered for supply will have to fulfil any additional requirement. i. e. with respect to tensile strength. As these were the only specifications prescribed, no other specification could be imposed for testing the material as no corrigendum to the said advertisement was issued with regard to some additional specifications nor was it ever notified that the polythene tendered for supply will have to fulfil any additional requirement. i. e. with respect to tensile strength. Though it is admitted by the learned counsel for the State that the advertisement did not lay down that polythene tendered for acceptance will be tested for tensile strength, this specification was accepted in view of the opinion of the quality checking squad which was of the opinion that minimum LD tensile strength at break above 120 Kgf/cm2 and to tensile strength at break above 85 Kgf/cm2 should be accepted which was in conformity with IS-2508/84 as in the opinion of the committee, material passing through test would be fit for temporary shelter for the cyclone affected persons. Thus, according to the learned State counsel, all the material that was tendered by the petitoners was subjected to this test also. In other words, the tensile strength of the material was checked and all that material which did not fulfil this requirement and though it may have fulfilled the specification laid down in the advertisement, was rejeced. ( 26 ) A further additional affidavit was filed on behalf of the SRC and the State of Orissa in which a reference has been made to the procurement of polythene from five suppliers, namely, OCCF, NCCF, Packing India, OSIC and Friends Order Supply and Co-operative Society and the quantity despatched. It is indicated that 11,390 rolls (4,55,600 Kg of silpouline materials) (prime polythene materials) were procured by the MD, OSIC upto 20-12-1999 and the same was received on 13-2-2000 after checking by the quality checking squad. It is further stated that the PRC had placed orders with IPCL and sixteen private firms for supply of 1000 MTs of LDPE prime material and 787 MTs of LDPE and HDPE from prime and recycled material respectively on the recommendation of DGOA and Ministry of Petrochemicals and out of the said requirement, 763. 16 MTs had been received by 2-12-1999. However, it is indicated that the difference in despatch of polythene material by PRC and actual receipt at Bhubaneswar are being reconciled and that shortage can be determined only after reconciliation of the record. 16 MTs had been received by 2-12-1999. However, it is indicated that the difference in despatch of polythene material by PRC and actual receipt at Bhubaneswar are being reconciled and that shortage can be determined only after reconciliation of the record. It is also stated by the IPCL that against the Order placed by the PRC, it (IPCL) had despatched 146 MTs of prime polythene material in 11 trucks after 20-12-1999 which had reached Bhubaneswar sometime after 27-12-1999 but the material was not accepted by the SRC. These materials were unloaded in the godown of OSIC, Cuttack but no decision has been taken by the Government whether the said material would be accepted or not. ( 27 ) ANNEXURE-I to the additional counter affidavit is a letter of the deponent who is Additional Commissioner, Relief dated 21-12-1999 addressed to the Collectors of some districts of the State to the effect that due to short supply and non availability of quality polythene rolls for distribution to the cyclone affected families, the Government had decided that whatever polythene rolls will be received up to 20-12-1999 will be despatched to different districts after quality checking by the quality checking squad for distribution to the affected families. A list of houses affected by the cyclone in different districts and the quantity of polythene sheets supplied through Kalinga Stadium has also been indicated. ( 28 ) AT the time of hearing, a reference was made to a D. O. Letter No. 99/src dated 18-12-1999 of the SRC to the Additional Relief Commissioner regarding the material procured through the PRC and from the IPCL under the orders of the PRC. By this, the Additional Relief Commissioner was informed that all the polythene already purchased by the PRC and sent to Bhubaneswar by train may be sent to different districts by road as per priority after drawing samples from each truck and the samples drawn be sent to C. I. P. E. T. laboratory for quality test through the quality checking squad. Further, the polythene trucks brought by IPCL under the orders of the PRC may, however, be sent to different destination after the test results are obtained. The samples be sent to CIPET and the laboratory should be told to make analysis as per the specification given by the PRC. Further, the polythene trucks brought by IPCL under the orders of the PRC may, however, be sent to different destination after the test results are obtained. The samples be sent to CIPET and the laboratory should be told to make analysis as per the specification given by the PRC. ( 29 ) A reference may also be made to the resolution of the quality checking squad dated 10-12-1999 relevant extracts whereof read thus: "it is observed that samples from PRC stocks comprising of prime LDPE, recycled LDPE, HDPE received by the quality control squad for quality checking and certification. xx xxthe materials received from PRC, New Delhi significantly varying from the item as described at (a) and (b) of advertisement No. 315/f. The Quality Checking Squad has already fixed quality parameters only for item (b) of the said advertisement. These parameters have been accepted by the Govt. at the high level meeting chaired by the Hon'ble Revenue Minister on 2-12-1999. The Committee seeks immediate instructions of the Govt. regarding the parameters on which the materials received from PRC New Delhi are to be tested. " (emphasis supplied)This resolution is signed by the Director, EPM, Director Textiles and Joint Director (Inspection), EPM Directorate. ( 30 ) AS to what happened thereafter has not been disclosed. The material on record clearly indicate that polythene rolls/sheets were procurred through three different sources, namely, (i) OSIC, (ii) PRC and (iii) open advertisement. Though there is some indication of specification regarding the supplies made through OSIC and on the basis of open advertisement, it has not been indicated as to what was the specification subject to which purchases were made and material was supplied by the PRC. To a query made at the time of hearing as to whether the same tests were applied to the material procured through the OSIC and the PRC as were applied to the material tendered in response to the advertisement, it was submitted by the learned counsel for the State that as the material supplied by OSIC and the PRC were not in response to the advertisement, the parameter of tests were different. That apart, in the affidavit filed by the PRC, it has been categorically stated that the specification prescribed in the advertisement was not applicable to the purchase made by him as the said purchases were not in response to the advertisement. That apart, in the affidavit filed by the PRC, it has been categorically stated that the specification prescribed in the advertisement was not applicable to the purchase made by him as the said purchases were not in response to the advertisement. ( 31 ) ANOTHER curious aspect of the matter is that though the polythene received from the PRC was despatched for distribution without putting them to a test, with respect to the polythene supplied by the IPCL, a Government of India Undertaking, it was directed that despatches will be made only after the test report is received. Here again, we find that two separate standards were adopted one for the polythene supplied by the PRC and the other for the polythene supplied by the IPCL. ( 32 ) WE may now make a reference to the relevant portions of the progress report submitted by the Superintendent of Police. CBI, SPE, Bhubaneswar, which had looked into the matter in terms of our Order dated 14-1-2000. ( 33 ) FIXATION of price at Rs. 74/ -. according to the CBI, with reference to the prevailing EPM was intriguing. The report indicates that while EPM rate contract was for material conforming to IS-2508/84. In the purchase Order, IS-2508/84 was not mentioned and was replaced by superior quality. Thus, there was a significant change in the quality specification. During the inquiry, there was evidence to indicate that at least some material supplied was recycled material and not virgin material. ( 34 ) AS regards the purchases made by the PRC, the report indicates that the PRC had claimed to have done pre-despatch inspection through a team and that as per the PRC's admission, the pre-despatch inspection was limited to checking of quality checking of measurement and visual inspection, cuts/holes, etc. and the said inspection report was signed by the officials of PRC though it was claimed that officials of the Central Government agencies were also involved in the said inspection. It also appears from the report that though the total quantity of 763. 16 MTs were sent by train, only 624. 33 MTs are stated to have been received by the SRC's office. The discrepancy between the despatch and receipt could not be explained as efforts to reconcile the figure were in progress. It also appears from the report that though the total quantity of 763. 16 MTs were sent by train, only 624. 33 MTs are stated to have been received by the SRC's office. The discrepancy between the despatch and receipt could not be explained as efforts to reconcile the figure were in progress. ( 35 ) THE report further indicates that OCCF had placed orders with some firms for purchase of polythene at Rs. 71/- per Kg. but had raised bills for the material at the rate of Rs. 74/- per Kg. Likewise, OSIC had obtained material at Rs. 66. 50 per Kg for recycled polythene and Rs. 70/- for silpauline, but had raised bills at Rs. 70/- per Kg for recycled polythene and Rs. 74/- for silpauline. Further, as the OSIC was unable to supply black polythene, they had supplied some silpauline. The PRC vide his letter dated 12-11-1999 had informed the SRC that the prevailing market price for the recycled polythene is Rs. 45/- to Rs. 55/- per Kg. depending upon the quality. ( 36 ) WE are not satisfied with the explanation offered with respect to the price fixed for the polythene. Admittedly, polythene was procured by the PRC on pre-payment basis at the rate of Rs. 54/- per Kg. The quality of the polythene so purchased is stated to be good and suitable for the purpose of being used as temporary shelter. If the quality of the polythene procured by the PRC was good and suitable for the purpose, as is the case of the PRC and also the State, we fail to see why the price of the polythene in the open advertisement and also for the purchases made through the OSIC was fixed at Rs. 70/- per Kg for recycled polythene rolls and sheets. Thus, either there was an inflation of price with respect to the polythene rolls and sheets purchased through the OSIC and procured on the basis of the advertisement or the material tendered/procured by the PRC was substandard and it is probably for that reason, the quality checking squad vide its report dated 10-12-1999 had opined that the material received from the PRC "significantly did not conform to the specifications laid down in the advertisement No. 315/f dated 26-11-1999" which related to the thickness, length, width and weight of the material. ( 37 ) WHAT also surprises us is the fact that the State is silent as to whether or not the material supplied by the OSIC after issuance of the advertisement and after 7-12-1999 fulfilled the requirement of the said advertisement and also had the required tensile strength as, it appears from the record, orders were placed and material accepted after 7-12-1999 and January, 2000 through OSIC and other different suppliers, namely, OCCF, NCCF, Packing India, OSIC and Friends Order Supply and Co-operative Society. ( 38 ) SO far as the orders placed with Packing India, the EPM rate contract holder in the State, is concerned, though it had a capacity of only 50 rolls per day, an order for supply of 33,000 rolls of polythene was placed with it, for, submitted by the State counsel, there was an emergent need for the same. Thus, with the admitted installed capacity, it would have taken 660 days to complete the supply. It obviously means that Packing India was given an opportunity to purchase polythene from other sources and supply the same to the SRC and naturally, as this was not in response to the open advertisement, one does not know nor has it been indicated as to which test the material was to be subjected. As to the type of material that may have been supplied by Packing India and accepted by the SRC, a reference may be made to the report of the quality checking squad in one of the writ application, whereby out of 40 trucks of polythene tendered by Packing India, polythene contained only in 11 trucks was found to be in order. It, therefore, appears, that the polythene supplied earlier, at least by Packing India at the rate of Rs. 70/- per Kg was of substandard quality. Likewise, we also strongly suspect and, this suspicion is on the basis of the material placed before us, that all was not well in the supplies made through the OSIC and PRC as with respect to those supplies, the State is significantly silent as to which test was applied and whether the tensile strength of the material was tested. Obviously, the polythene was tendered for providing temporary shelter to the helpless people who did not have a roof over their heads and were to face the oncoming winter. Obviously, the polythene was tendered for providing temporary shelter to the helpless people who did not have a roof over their heads and were to face the oncoming winter. Supply of polythene to these helpless persons was not an empty formality but was with a specific purpose - to provide a temporary shelter, and as such, the polythene was to be of a quality which would serve the particular purpose. Therefore, if the authorities were of the view that it was necessary to test the tensile strength of recycled polythene for ascertaining as to whether or not it was fit for the purpose for which it was intended, we fail to see the reason as to why this particular specification was not thought proper with respect to the polythene supplied through the OSIC and the PRC, at least, with respect to those consignments which were received after the advertisement and the report of the quality checking squad relating to the fixing of tensile strength. But, according to the learned State counsel, the requirement of testing it for the tensile strength was not adopted for the polythene procured by the PRC or for those supplied by the OSIC becuase it was not in terms of the advertisement. This, obviously, shows that different standards were adopted and while goods loaded in hundreds of trucks were discarded on the ground that they could not pass the required test including that of the tensile strength and goods loaded in hundreds of trucks were not tested, orders were placed and supplies accepted from the OSIC which had procured the material from suppliers in and out of the State, and goods received through the PRC were even accepted without test and payment therefor had been made to it (PRC) in advance. ( 39 ) IN the above facts and circumstances, we are of the view that this is a matter which requires a thorough investigation by an independent agency, which in our opinion, is the Central Bureau of Investigation; moreso, when crores of public money is involved. ( 40 ) ACCORDINGLY, we direct the Director, Central Bureau of Investigation, New Delhi, to cause an investigation into the matter of procurement of polythene/silpauline by the (sic) different sources including the PRC and the OSIC, in the aftermath of the super-cyclone in the State. ( 40 ) ACCORDINGLY, we direct the Director, Central Bureau of Investigation, New Delhi, to cause an investigation into the matter of procurement of polythene/silpauline by the (sic) different sources including the PRC and the OSIC, in the aftermath of the super-cyclone in the State. The investigation should be entrusted to an officer not below the rank of Deputy Inspector General. ( 41 ) WE are afraid that the prayer of the petitioners for acceptance of the polythene tendered by them without subjecting the same to the test of tensile strength, cannot be allowed. It is no doubt true that the advertisement in question did not prescribe for such a test. However, this was introduced as the quality checking squad was of the view that the material not having a particular tensile strength will not serve the purpose for which it was intended. Thus, it cannot be said that the action of the authorities in laying down the specification for putting the material to the test of tensile strength, was unreasonable. However, the action of the authorities in accepting the material tendered by the PRC or through the OSIC without subjecting the same to proper test and the test of tensile strength, was unreasonable. We may observe that if there was any change of specification, in all fairness, it was incumbent upon the authorities to have notified the same. But as it was not so done, the suppliers had no knowledge about the requirement of tensile strength and tendered polythene which, according to them, was in accordance with the specification laid down in the advertisement in question. Therefore, though we are of the view that the action of the authorities in not issuing a corrigendum to the advertisement was not proper, no direction can be issued to the Special Relief Commissioner to accept the material not conforming to the specification including the tensile strength. It will, however, be open to the petitioners if they are so advised, to approach the common law forum for the loss/damage, if any, incurred/suffered by them on account of the inaction of the authorites in not issuing a corrigendum and thereby putting them (the petitioners) in a situation which is not of their making. It will, however, be open to the petitioners if they are so advised, to approach the common law forum for the loss/damage, if any, incurred/suffered by them on account of the inaction of the authorites in not issuing a corrigendum and thereby putting them (the petitioners) in a situation which is not of their making. ( 42 ) FURTHER, with respect to the polythene/silpauline that is still lying in the Warehouses awaiting test, we may observe that the same may be subjected to the required test including tensile strength, if there is any further requirement of the polythene by the SRC. ( 43 ) SO far as the interim order passed by the Court restraining the authorities from disbursing any amount for the material supplied through the OSIC or other suppliers is concerned, it is clarified that the SRC will subject the material to test and on being satisfied that the material supplied by the OSIC and others whose payments have not been made, are in conformity with the specification including the tensile strength, and after recording such satisfaction, shall make the disbursement in respect thereof. ( 44 ) WITH the aforesaid directions and observations, these writ applications are disposed of. A copy of this judgment be handed over to Mr. Sanjit Mohanty, learned counsel appearing for the Central Burau of Investigation, for compliance. ( 45 ) B. P. DAS, J. I agree. Order accordingly.