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2016 DIGILAW 308 (ORI)

Jayadev Padhi v. State of Odisha

2016-04-19

B.R.SARANGI, VINEET SARAN

body2016
JUDGMENT : Dr. B.R. Sarangi, J. The decision taken by opposite party no.2- Engineer-in-Chief, Water Resources Department, Secha Bhawan, Bhubaneswar, Odisha in the minutes of the meeting held on 29.06.2015, to cancel the tender and call for fresh tender on percentage rate contract basis to resolve the dispute as per order dated 18.06.2015 passed by this Court in W.P.(C) Nos. 10669 & 10709 of 2015 for the work “Repair and Renovation of Capital Embankment No. 2A of river Salandi (Kadabarange to Radia) from RD 0.00 km to 14.00 km under NABARD assistance (RIDF-XX)” is under challenge in this petition. 2. Learned counsel for the petitioner urged that such decision by opposite party no.2 is arbitrary, unreasonable and contrary to the provisions of law, therefore, sought for interference of this Court. 3. Mr. P.K. Muduli, learned Addl. Standing Counsel for the State stated that since decision has been taken while resolving the dispute pursuant to order dated 18.06.2015 passed by this Court in W.P.(C) No. 10669 & 10709 of 2015 to cancel the tender and call for fresh tender on percentage rate contract basis, the writ petition merits no further consideration and the same has to be disposed of in terms of the decision taken by the authority. 4. Since pleadings of the parties have been exchanged with their consent, the matter is taken up for final disposal. It appears that for the selfsame work initially tenders were invited pursuant to e-tender in February, 2015, which has been cancelled. Thereafter, a fresh e-tender was invited in April, 2015 and the same having been cancelled, the present e-tender was made stating that tender paper would be made available in between 20.04.2015 to 06.05.2015 and date of opening of technical bid was fixed to 12.05.2015. Pursuant to such e-tender, five persons participated in the tender and after verification of technical bids, opposite party no.3 found that the writ petitioner, one Debendra Kumar Tripathy and one Raj Kumar Sahoo were qualifying tenderers. After financial bid was opened, two others were disqualified. Consequently, the tender of the petitioner was accepted by opposite party no.3 and opposite party no.4 entered into an agreement on 16.06.2015. The petitioner deposited the requisite security deposit amounting to Rs. 21.00 lakhs, purchased the materials worth of Rs. 7,70,000/- to execute the work and paid some advance to the skilled labourers. 5. Consequently, the tender of the petitioner was accepted by opposite party no.3 and opposite party no.4 entered into an agreement on 16.06.2015. The petitioner deposited the requisite security deposit amounting to Rs. 21.00 lakhs, purchased the materials worth of Rs. 7,70,000/- to execute the work and paid some advance to the skilled labourers. 5. The unsuccessful bidders namely, Debendra Kumar Tripathy and Raj Kumar Sahoo filed two separate writ petitions before this Court registered as W.P.(C) Nos. 10669 & 10709 of 2015 challenging the decision on the financial bid. The present petitioner being opposite party no.5 appeared and filed his preliminary counter affidavit in W.P.(C) No. 10709 of 2015. On considering the same, this Court vide order dated 18.06.2015 directed the opposite party no.2 to settle the dispute amicably amongst three tenderers in respect of both writ petitions, i.e. W.P.(C) Nos. 10669 and 10709 of 2015. Accordingly, on receipt of the order dated 18.06.2015, opposite party no.2 issued notice to the petitioner, Debendra Kumar Tripathy and Raj Kumar Sahoo. All the three successful tenderers in technical bid appeared before him on 29.06.2015 for discussion and for settling the matter amicably. The parties appeared on the date fixed, but the matter could not be resolved amicably in view of the fact that Raj Kumar Sahoo and Debendra Kumar Tripathy, the two tenderers wanted strict adherence to detailed tender call notice conditions regarding quoting of rate of % age less or excess to the bid amount as it is an item rate contract. The authority did not incline to go into the document verification, which is the job of the field officers. It is stated that though the agreement has been executed with the petitioner very shortly, i.e. on 16.03.2015, practically there is no physical progress of the work. Therefore, the Engineer-in-Chief has decided in the minutes of the meeting held on 29.6.2015 to cancel the tender and call for fresh tender on percentage rate contract basis. Accordingly, the order dated 18.6.2015 passed by this Court in W.P.(C) Nos. 10669 and 10709 of 2015 was complied by the Engineer-in-Chief. 6. The petitioner by way of the present writ petition has called upon this Court to apply judicial review in administrative decisions relating to acceptance of the terms and conditions set out in the contract. Accordingly, the order dated 18.6.2015 passed by this Court in W.P.(C) Nos. 10669 and 10709 of 2015 was complied by the Engineer-in-Chief. 6. The petitioner by way of the present writ petition has called upon this Court to apply judicial review in administrative decisions relating to acceptance of the terms and conditions set out in the contract. In Tata Cellular v. Union of India, AIR 1996 SC 11 : (1994) 6 SCC 651 , the Apex Court has held as follows : “(1) The modern trend points to judicial restraint in administrative action. (2) The court does not 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. (6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure.” 7. The scope of judicial review in contractual matters has also been lucidly considered by the Apex Court in Raunaq International Ltd. v. I.V.R. Construction Ltd., (1999)1 SCC 492 and Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517 and Michigan Rubber (India) Ltd. v. State of Karnataka, (2012) 8 SCC 216 . 8. The scope of judicial review in contractual matters has also been lucidly considered by the Apex Court in Raunaq International Ltd. v. I.V.R. Construction Ltd., (1999)1 SCC 492 and Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517 and Michigan Rubber (India) Ltd. v. State of Karnataka, (2012) 8 SCC 216 . 8. In Monarch Infrastructure (P) Ltd. v. Commissioner, Ulhasnagar Municipal Corporation, (2000) 5 SCC 287 = AIR 2000 SC 2272 , the Apex Court has held as follows : “Broadly stated, the Courts would not interfere with the matter of administrative action or changes made therein, unless the Government action is arbitrary or discriminatory or the policy adopted has no nexus with the object it seeks to achieve or is mala fide” Similar view has also been taken in Air India Ltd. v. Cochin International Airport Ltd., (2000) 2 SCC 617 = AIR 2000 SC 801 , in Directorate of Education v. Educomp Datamatics Ltd., (2004) 4 SCC 19 = AIR 2004 SC 1962 and Master Marine Services Pvt. Ltd. v. Metcalfe & Hodgkinson Pvt. Ltd., AIR 2005 SC 2299 = (2005) 6 SCC 138 . As it appears, the petitioner has not made out any case that the decision taken to cancel the tender process is discriminatory or mala fide. 9. In Maa Binda Express Carrier v. North-East Frontier Railway, (2014) 3 SCC 760 , in paragraph 12, the Apex Court has held as follows : “12. As pointed out in the earlier part of this order, the decision to cancel the tender process was in no way discriminatory or mala fide. On the contrary, if a contract had been awarded despite the deficiencies in the tender process serious questions touching the legality and propriety affecting the validity of the tender process would have arisen. Inasmuch as the competent authority decided to cancel the tender process, it did not violate any fundamental right of the appellant nor could the action of the respondent be termed unreasonable so as to warrant any interference from this Court. The Division Bench of the High Court was, in that view, perfectly justified in setting aside the order passed by the Single Judge and dismissing the writ petition. If the competent authority decided to cancel the tender process, it does not violate any fundamental right nor the action is unreasonable so as to warrant any interference by the Court. The Division Bench of the High Court was, in that view, perfectly justified in setting aside the order passed by the Single Judge and dismissing the writ petition. If the competent authority decided to cancel the tender process, it does not violate any fundamental right nor the action is unreasonable so as to warrant any interference by the Court. More so, the decision to cancel the tender process is in no way discriminatory or mala fide. 10. In view of the discussions as aforementioned, this Court finds no illegalities or irregularities to have been committed by the opposite party-authority in taking a decision in the minutes of the meeting held on 29.6.2015 in resolving the dispute pursuant to the order dated 18.6.2015 passed by this Court in W.P.(C) Nos. 10669 and 10709 of 2015 by cancelling the tender and calling for fresh tender on percentage rate contract basis. We are not inclined to interfere with the said decision. Accordingly, the writ petition is dismissed. No order as to costs.