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2009 DIGILAW 399 (ORI)

SRI A. SIBO RAM RAJU v. STATE OF ORISSA

2009-05-07

L.K.MISHRA, P.K.TRIPATHY

body2009
JUDGMENT : 1. Counter and additional counter filed by the parties are on record. Parties agree for disposal of the writ petition at the stage of admission. Both the. writ petitions, as per the contention of the parties, involve similar questions with similar relief; therefore, parties propose for analogous hearing and disposal of both the writ petitions. 2. Heard argument from the parties and both the writ petitions are disposed of in the following manner. 3. On 03.11.2008 Short Tender Call Notices were issued by the Regulated Market Committee, Nawarangpur (in short 'R.M.C.') for construction and development of Maize Mandi at Umerkote Market Yard and construction and development of Maize Mandi at Raighar Market Yard. After receipt of the tender appears it was evaluated by the Committee and ultimately opposite party No. 4 having quoted the lowest tender price was awarded with the contract of both the works. Therefore, finalization of the tender in favour of opposite party No. 4 for the Maize Mandi at Umkerkote is under challenge in W.P.(C) No. 18332 of 2008, whereas finalization of tender in favour of the said opposite party about the Maize Mandi at Raighar is under challenge in W.P.(C) No. 18333 of 2008. 4. Petitioner had also submitted his tender papers for both the works. So far as Umkerkote Market Yard is concerned, there was a direct competition between the opposite party No. 4 and the Petitioner. In case of Raighar Market Yard, besides the Petitioner and opposite party No. 4 Anr. contractor also competed, but he is not a party to this proceeding. His tender having been refused and that person having not challenged the same, his non-availability as a party to this litigation does not stand on the way to adjudicate the dispute raised by the Petitioner in each of the writ petitions. 5. contractor also competed, but he is not a party to this proceeding. His tender having been refused and that person having not challenged the same, his non-availability as a party to this litigation does not stand on the way to adjudicate the dispute raised by the Petitioner in each of the writ petitions. 5. Sum and substance of the contention of the Petitioner is that as per the terms and conditions in Annexure-1, at page-9 of the writ petition, differential amount between the estimated cost and the tendered amount quoted in the tender paper was required to be deposited in favour of the Chairman, R.M.C, Nawarangpur, but opposite party No. 4 having deposited such amount in favour of the Secretary of the R.M.C., Nawarangpuri his tender paper was liable to be rejected on that ground.The second objection is that as per Clause-26 of the Terms and Conditions in Annexure-2 (set of Tender Documents), the tender, which is not in the prescribed proforma and not strictly according to the terms and conditions of the tender call notice and specification, is liable for rejection, and in that respect as per Clause-64 the machinery requirement having been specified, that was not fulfilled by opposite party No. 4 while submitting his tender papers or when it was considered in his favour and, therefore, the tender submitted by the opposite party No. 4 was liable to be rejected instead of awarding the contract to him. 6. Mr. Rath, learned Counsel for the Petitioner while highlighting the aforesaid deficiency in the tender papers submitted by opposite party No. 4, argues that the relaxation granted by the Tender Committee in Annexure-C/2 is illegal, improper and amounts to showing favour to opposite party No. 4. Accordingly, Petitioner has prayed to quash the order/award made by opposite party No. 2 in favour of opposite party No. 4 relating to construction works at Umorkote and Raighar and to direct opposite party No. 2 to issue the work orders to the Petitioner. 7. In support of his contention, Petitioner relies on the cases of M/s. Monarch Infrastructure (P) Ltd. Vs. Commissioner, Ulhasnagar Municipal Corporation and Others, and West Bengal State Electricity Board Vs. Patel Engineering Co. Ltd. and Others. 7. In support of his contention, Petitioner relies on the cases of M/s. Monarch Infrastructure (P) Ltd. Vs. Commissioner, Ulhasnagar Municipal Corporation and Others, and West Bengal State Electricity Board Vs. Patel Engineering Co. Ltd. and Others. In both the citations Petitioner relies on the ratio that waiving of a condition in the tender and grant of favour in favour of the successful contractor, if infested with favouritism, then such act of the authority is illegal and liable to be quashed. Mr. S.D. Das, learned senior advocate appearing for the opposite parties 2 and 3 and Mr. Gupta, learned Counsel appearing for opposite party No. 4 submit in support of the plea taken in the counter affidavit and the documents relied on therein and argue that so far as the arrangement of machinery and vehicles to execute the work is concerned, both the parties stand at similar footing. They further state that it is rightly so, because Clause-64 in Annexure-2 stipulated such a condition so as to ensure availability of such machinery and vehicles for due execution of the work. Therefore, it is not necessary for the contractor to own and retain possession of such machinery and vehicles as a pre-pondjtion to seek for the contract. In other words, they say that if the persons offering tender is capable of satisfying the authority that he can make provision for availability of the machinery and vehicles, then that is sufficient compliance of Clause-64. 8. They further argue that in relation to deposit of differential amount, Annexure-1 provides for making such deposit in the name of Chairman in Clause-4 of the terms and conditions in Annexure-2, which provides for making such deposit in favour of the Secretary, R.M.C., Nawarangpur. Petitioner having purchased the tender paper, Annexure-2, abided by that instruction, submitted the deposit and under such circumstance no exception should be taken when the differential amount was duly deposited in favour of the R.M.C., Nawarangpur by drawing the Bank Draft in favour of the Secretary instead of Chairman, R.M.C., Nawarangpur. They also state that the Valuation Committee, on consideration of all such aspects, have taken a reasonable view and accordingly found the tender paper submitted by opposite party No. 4 to be entertainable. Obviously, there are contradictions in that direction regarding the authority, in whose name such amount is to be deposited. They also state that the Valuation Committee, on consideration of all such aspects, have taken a reasonable view and accordingly found the tender paper submitted by opposite party No. 4 to be entertainable. Obviously, there are contradictions in that direction regarding the authority, in whose name such amount is to be deposited. The Evaluation Committee on consideration of both the aforesaid aspects found that neither the Chairman nor the Secretary of the R.M.C., Nawarangpur have any account individually and, under such circumstance the deposit of the differential amount in the name of the Secretary does not invalidate the tender offered by opposite party No. 4. We do not find the aforesaid approach of the Evaluation Committee to be either illegal, unjust or improper. It also does not amount to showing favour to opposite party No. 4 by ignoring the case of the Petitioner. Apart from that, we also take into consideration the circumstance that Annexure-1 was the Notice-cum-Advertisement for inviting tender, whereas Annexure-2 is the tender document (proforma) which was being shown to be filled up and filed by the intending tenderer. As noted above, since Clause-4 at page-40 of Annexure-2 indicates that the instruction was in Clause-4 to deposit the Bank Draft in the name of the Secretary, R.M.C., Nawarangpur, therefore, from that alone we gather that the view of the Evaluation Committee does not suffer from perversity or is a view only favourable to opposite party No. 4. In other words, there was indication in the Tender Call Notice to deposit the amount in the name of the Secretary, R.M.C. Nawarangpur and, therefore, no relation, deviation or modification was done by opposite party No. 4 nor it was so relaxed, modified or deviated by the Evaluation Committee. Therefore, the first ground of objection taken by the Petitioner is devoid of merit. 9. It is not disputed at the Bar and it finds support from the annexed documents, i.e., Annexures D/2 and E/2 series that both opposite party No. 4 as well as the Petitioner while submitting their tender papers, filed affidavit of the owners of the machinery and vehicles that such machineries and vehicles from such owners would be available to execute the work under contract. Clause-64 of Annexure-2 reads as hereunder- 64. Clause-64 of Annexure-2 reads as hereunder- 64. For the Tender Call Notice the documentary evidence in respect of the following machineries and equipments are to be submitted by the Tenderer, without which the Tender is likely to be rejected. (a) Truck or Tipper - 4 Nos. (b) Concrete Mixture Machine - 4 Nos. (c) Needle Vibrator - 4 Nos. (d) Water Tanker - 4 Nos. (e) Plate Vibrator - 2 Nos. (f) Road Roller - 2 Nos. On a mere reading of the above-quoted Clause, it does not appear that it was required of the persons submitting tender papers to own and possess the machineries or the vehicles. It can be read from the aforesaid Clause that it was intended to say that such machineries and vehicles are available with the person taking the contract to undertake the construction work. Once that can be achieved in the method adopted by opposite party No. 4 and that was appropriately considered by the Evaluation Committee, therefore, we also do not find any merit in that contention and accordingly that argument of the Petitioner is also rejected. 10. In the case of Siemens Public Communication Networks Pvt. Ltd. and Another Vs. Union of India (UOI) and Others the Apex Court has propounded as to when and where the judicial scrutiny should go to the extent of interfering with the administrative decisions. The ratio laid down by the Apex Court in that context are quoted below. While arriving at the aforesaid conclusions, this Court took note of the illustrations case of Tata Cellular Vs. Union of India wherein at paras 77 and 94 it was noted as follows : 77. The duty of the Court is to confine itself to the question of legality. Its concern should be : 1. Whether a decision-making authority exceeded its powers ? 2. Committed an error of law, 3. Committed a breach of the rules of natural justice, 4. reached a decision which no reasonable tribunal would have reached or, 5. abused its powers. Therefore, it is not for the Court to determine whether a particular policy or particular decision taken in the fulfillment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. abused its powers. Therefore, it is not for the Court to determine whether a particular policy or particular decision taken in the fulfillment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under: (i) Illegality : This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. (ii) Irrationality, namely, Wednesbur unreasonableness. (iii) Procedural impropriety. The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact, in R.V. Secretary of State for the Home Department, ex Brind, Lord Diplock refers specifically to one development, namely, the possible recognition of the principle of proportionality. In all these cases the test to be adopted is that the Court should, "consider whether something has gone wrong of a nature and degree which requires its intervention. 94. The principles deducible from the above are : (1) The modern trend points to judicial restraint in administrative action. (2) The Court does sit as a Court of appeal but merely reviews the manner in which the decision was made. (3) The Court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted It will be substituting its own decision, without the necessary expertise which itself may be fallible. (4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts. (5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides. (6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure. (paragraphs 17 of the cited judgment) 11. When the Petitioner submits that the aforesaid relaxation granted by the Evaluation Committee amounts to procedural lapses, modification of the terms and conditions and grant of favouritism to opposite party No. 4, the opposite parties submit that no such ailment is present either in the decision of the Evaluation Committee or while awarding the contract in favour of opposite party No. 4. On analysis of the documents filed from both the parties, we do not find it to be a case of procedural lapses or grant of relaxation by modifying the conditions so as to render the decision of the Evaluation Committee as illegal, unjust or improper. 12. Apart from that, we find from the counter affidavit of opposite party No. 4 that by the date of filing the counter he had already completed 40% of the construction work. Mr. Das, learned senior advocate appearing for the opposite parties 2 and 3 also makes a verbal submission that as per the instruction received today the construction work has progressed up to about 60%. In that respect the opposite parties counter the contention of the Petitioner regarding the interim order passed on 23.12.2008 by stating that by the date of passing that interim order, the work order had already been issued in favour of the opposite party No. 4 and, apart from that, interim order was communicated to opposite party No. 4 at a very belated stage. 13. Whenever a public work is undertaken, the system of inviting tender, finalizing it is dominating with two purposes, viz., (1) to minimize the cost of expenditure in achieving the tender item, and (2) to exhibit transparency in the matter. Of course, within that also comes all the questions relating to the competency, eligibility, efficiency and demerits, etc. if any. 13. Whenever a public work is undertaken, the system of inviting tender, finalizing it is dominating with two purposes, viz., (1) to minimize the cost of expenditure in achieving the tender item, and (2) to exhibit transparency in the matter. Of course, within that also comes all the questions relating to the competency, eligibility, efficiency and demerits, etc. if any. When the Government or the Public Sector Undertaking or Public Bodies undertake the work of the present nature, it does not do it as a philanthropic organization to provide work to the contractors but to cater to the needs of that organization by early completion of the work. In the process, of course, if the organization commits breach of the terms and condition, then that is subject to scrutiny of the Court under Article 226 of the Constitution of India. As has been observed by the Supreme Court, as quoted above, the scrutiny should not be to the extent of acting as the appellate or controlling authority, and on analysis of the entire facts and circumstances, the citations and the relevant document, we do not find it to be a case of interference, and accordingly both the writ petitions are dismissed.