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2009 DIGILAW 665 (ORI)

PRADEEP KUMAR SAHOO v. STATE OF ORISSA

2009-08-27

I.M.QUDDUSI, SANJU PANDA

body2009
JUDGMENT : Sanju Panda, J. - The Petitioner, challenging the action of the opposite parties 1& 2 in rejecting his tender paper for construction of super passage across Salandi Left Main Canal at RD.8910M of I.A.B.P. under A.I.B.P. for the year 2008-09, has filed this writ petition invoking the jurisdiction under Article 227 of the Constitution of India. 2. The facts, as narrated in the writ petition, are as follows: The Executive Engineer, Salandi Canal Division, Bhadrak on behalf of the Governor of Orissa published a Tender Call Notice inviting applications from the eligible class of contractors registered with the State Government for giving their item rate bids for construction of 14 (fourteen) items of works indicated in the said tender. The sale and receipt of the bid documents started from 1.10.2008 and closed on 16.10.2008 at 3.00 P.M. The Petitioner being an "A" Class registered contractor, purchased the tender paper for the item of works against Sl. No. 11 in the Tender Call Notice i.e. the work for construction of super passage across Salandi Left Main Canal at RD.8910M of I.A.B.P. under A.I.B.P. for the year 2008-09 and submitted the tender paper as per the terms and conditions of the Tender Call Notice. As per the said Tender Call Notice, the tendered is required to deposit the additional performance security to the extent of differential cost of 90% of the admitted cost. 3. For better appreciation, clause-6 of the said Tender Call Notice is extracted below: 6. In case the tender amount of the bidder is less than the estimated cost by more than 10%, the bidder shall deposit the additional performance security to the extent of the differential cost of 90% of the estimated cost and the bid amount, in shape of Post Office Saving Bank Account/NSC/Post Office Time Deposit Account/KVP/Deposit Receipt of schedule Bank duly pledged in favor of the E.E. Salandi Canal Division, Bhadrak and accompany with the tender, failing which the tender will be rejected. The additional performance security of the unsuccessful bidder will be refunded as like EMD. 4. Accordingly, the Petitioner submitted his tender paper at a price less than 10.46 of the estimated cost and deposited Rs. 30,000 towards the differential price in shape of National Savings Certificate. He also deposited Rs. 50,000 as EMD in the shape of fixed deposit and deposited further amount of Rs. 10,400 on 15.10.2008. 4. Accordingly, the Petitioner submitted his tender paper at a price less than 10.46 of the estimated cost and deposited Rs. 30,000 towards the differential price in shape of National Savings Certificate. He also deposited Rs. 50,000 as EMD in the shape of fixed deposit and deposited further amount of Rs. 10,400 on 15.10.2008. The Petitioner's tender value for the aforesaid work was Rs. 44,58,945.16 whereas opposite party No. 3 offered the tender at Rs. 44,90,747.65 It is further submitted by the Petitioner that though he deposited Rs. 30,000 towards additional performance security in the shape of National Savings Certificate, on calculation, he found that the exact amount comes to Rs. 33,091.86. Therefore, by way of abundant caution the Petitioner deposited further sum of Rs. 10,400 in shape of Bank Draft -in the name of Executive Engineer. Salandi Canal Division towards the additional performance security on 11.11.2008. Thus, the total amount paid by the Petitioner comes to Rs. 40,400. The Petitioner being the lowest tendered was entitled to be considered and at least the authority should intimate him the reason of rejection. As the Petitioner did not receive any intimation from the Executive Engineer, he sent the said draft by registered post which was received in the office of the Executive Engineer. But the authority without giving any information to the Petitioner and taking note that he is the lowest tendered, in a surreptitious manner allotted the works to opposite party No. 3. Though the Petitioner complied with all the conditions and there was no deficiency on the part of the Petitioner as a lowest tendered for the said work, his tender was rejected. It is submitted by the Learned Counsel for the Petitioner that the deficiency of depositing the amount is curable one and the Petitioner being the lowest tendered, he cured the deficiency within the stipulated time by making a bank draft of Rs. 10,400 within 16.10.2008, i.e., the last date fixed to file the tender. In such a situation, instead of allotting the works in favor of opposite party No. 3, the same should have been allotted to him. Since the Petitioner's tender has been rejected by the Executive Engineer, he has approached this Court for quashing the allotment of works in favor of opposite party No. 3 and reconsiders the tender submitted by the Petitioner. 5. Opposite parties 1 and 2 have filed their counter affidavit. Since the Petitioner's tender has been rejected by the Executive Engineer, he has approached this Court for quashing the allotment of works in favor of opposite party No. 3 and reconsiders the tender submitted by the Petitioner. 5. Opposite parties 1 and 2 have filed their counter affidavit. Opposite party No. 3 has also filed his separate counter affidavit. In the counter affidavit, the authorities have taken a stand that due to deficiency of the amount, the tender of the Petitioner was rejected and the deficient amount was received in the Office of the Executive Engineer on 12.11.2008 i.e. after opening of the tender on 17.10.2008. Therefore, opposite party No. 3 being the second lowest tendered, his tender was accepted and the contract agreement was executed on 29.11.2008. The work order was issued immediately as the works were to be completed by 28.5.2009, i.e., within the stipulated period of six months. Opposite party No. 3 in his counter affidavit has denied the allegations of the Petitioner and stated that he has already collected the materials for the construction work by investing huge amount. 6. The Petitioner has filed rejoinder refuting all the facts stated in the counter affidavits. The Petitioner has stated that the bank draft of Rs. 10,400 dated 15.10.2008 was prepared and the same was offered by hand to the Executive Engineer, Salandi Canal Division, Bhadrak, opposite party No. 2 as by then the tender has already been dropped who orally assured him that they will intimate him to deposit the same and submitted that as per Clause 3.5.5 Note-II of OPWD Code (Vol. I) a successful bidder can deposit the additional performance security to the extent of differential cost if it is seriously unbalanced. Therefore, the authority without calling for deposit of the said amount should not have rejected his tender at the threshold when the tender was opened on 17.10.2008. 7. For better appreciation, Note-II of Clause 3.5.5 of Orissa Public Works Department Code (Vo1. I) is quoted below: NOTE-II. Additional performance security shall be deposited by the successful-bidder when the bid amount is seriously unbalanced i.e. less than the estimated cost by more than 10%. 7. For better appreciation, Note-II of Clause 3.5.5 of Orissa Public Works Department Code (Vo1. I) is quoted below: NOTE-II. Additional performance security shall be deposited by the successful-bidder when the bid amount is seriously unbalanced i.e. less than the estimated cost by more than 10%. In such an event the successful bidder will deposit the additional performance security to the extent of the differential cost of the bid amount and 90% of the estimated cost in shape of Post office Savings Bank Account/National Savings Certificates/Post Office Time deposit account/Kissan Vikash Patra/deposit receipt of schedule Bank. 8. The instructions given by the Government to the Works Department are codified in Orissa. Public Works Department Code (Vol. I). The said Code provides that where the deposit made by the successful bidder is less than estimated cost in respect of additional performance security by more than 10%, the successful bidder will deposit the additional performance security to the extent of the differential cost of the bid amount. 9. In the present case, from the record it reveals that though Petitioner obtained a draft of Rs. 10,400 on 15.10.2008, he sent the same to the authority on 11.11.2008, as stated by him in the writ petition. However, the authority received the said draft on 12.11.2008. We have perused the relevant records produced by the learned Addl. Government Advocate. It appears that the tender document submitted by the Petitioner contained an affidavit of the Petitioner which was sworn in on 16.10.2008. This indicates that the tender was submitted by the Petitioner on 16.10.2008. If the Petitioner had already prepared the bank draft for additional amount on 15.10.2008, he could have easily submitted the same along with the tender documents. Since he has not filed that draft along with the tender papers, we are unable to accept the plea of the Petitioner that he offered the said deficient amount orally and the same was not accepted by the authority. 10. It is well settled that the administrative instructions which have no statutory force, do not give rise to any legal right in favor of the aggrieved party and cannot be enforced in any court of law against the Administration. The authority can give administrative instruction to its subordinate how to act in certain circumstances but such instruction cannot be treated as statutory rules. The authority can give administrative instruction to its subordinate how to act in certain circumstances but such instruction cannot be treated as statutory rules. The same also does not impose any legal obligation on the authorities for whose guidance they are issued. Such an instruction would confer no legal and enforceable right on the party concerned even if any of the directions is ignored. Their breach may subject the subordinate authority to disciplinary or appropriate action, but they cannot be said to be in the nature of statutory rules having force of law subject to the jurisdiction of the Court. Thus, even if there has been any breach of such instruction that does not confer any right on the aggrieved party to ask for a writ against the authority by way of writ petition under Article 226 of the Constitution of India. 11. In view of the above, the writ petition being devoid of merit, the same is accordingly dismissed. No costs. I.M. Quddusi, A.C.J. 12. I agree. Final Result : Dismissed