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2016 DIGILAW 792 (ORI)

Kailash Chandra Lenka v. Managing Director, IDCO

2016-09-13

B.R.SARANGI, VINEET SARAN

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JUDGMENT : Vineet Saran, J. The opposite party-IDCO had, vide E-Tender Call Notice dated 16.04.2016, invited tenders for construction of approach road from Mania village to OCL Junction to village Bisuali for Auto Park at Mania, Tangi, Dist-Cuttack within the estimated cost of Rs.34.22 lakh. The petitioner as well as opposite party No.4 had participated in the tender process and submitted their tenders within time. As per the tender call notice, the technical bids of the petitioner, as well as that of the opposite party No.4, were opened on 11.05.2016. Then on 07.06.2016, the order rejecting the technical bid of the petitioner was uploaded in the website, wherein, it was stated that the Technical Committee had decided to qualify opposite party No.4 alone and opened his price bid on the next date, i.e., 08.06.2016. Challenging the said order, this writ petition has been filed. 2. We have heard Sri N.K. Sahu, learned counsel for the petitioner as well as Sri A. Das, learned counsel for opposite parties No.1 to 3-IDCO and Sri B.K. Biswal, learned counsel for opposite party No.4 and perused the record. 3. Pleadings have been exchanged and with consent of learned counsel for the parties, this petition is being disposed of at the admission stage. 4. The submission of the learned counsel for the petitioner is that though the petitioner was fully qualified and eligible for being considered for awarding of contract, but, without assigning any reason, by order dated 07.06.2016 under Annexure-3 to the writ petition, the technical bid of the petitioner has been rejected by merely saying that “after opening of the technical bids, the documents downloaded from the e-procurement site were placed before the tender committee. The tender committee examined and discussed the matter and committee decided to qualify Sri Chinmay Kumar Routray (opposite party No.4 herein) and opened his price bid on 08.06.2016 by 3.30 P.M.” It is submitted that no reason whatsoever for rejecting the technical bid of the petitioner has been assigned in the said order, wherein it was directed that the price bid of the opposite party no.4 was to be opened on the very next date. It is also submitted that no reason can be substituted or supplemented by the opposite parties in the counter affidavit, as the order has to be seen and evaluated on the grounds and reasons stated therein, and not on the basis of what is stated in the counter affidavit. It is further submitted by the learned counsel for the petitioner that though in the counter affidavit it has been stated that the Service Tax Registration Certificate was submitted by the petitioner in the name of the Firm M/s. Jagannath Fabricator and not in his own name, but such reason was never communicated to the petitioner. It has been categorically stated in the rejoinder affidavit that, in the past also, with regard to three contracts, which were awarded in the name of the petitioner, the Service Tax Registration Certificate furnished by the petitioner with regard to M/s. Jagannath Fabricator were duly accepted by the opposite parties, and the opposite parties cannot now turn around and reject the tender bid of the petitioner, merely on the ground that the Service Tax Registration Certificate was that of the firm of which the petitioner is the sole proprietor. It is submitted that such explanation has been given in the rejoinder affidavit for the first time, as the petitioner was earlier not communicated the reason for rejection, and such ground has been taken only in the counter affidavit. 5. Per contra, Sri A. Das, learned counsel for the opposite parties-IDCO has submitted that the communication uploaded in the website on 07.06.2016 did not require to contain reasons and, if the petitioner was aggrieved, he ought to have asked for the reasons for rejection of the technical bid, which he did not do, and rushed to this Court on 09.06.2016 by filing this writ petition. 6. Sri Biswal, learned counsel for the opposite party no.4 has submitted that though the petitioner possesses Service Tax Registration Certificate in his own name, he did not furnish it and the one which he has furnished was that of his firm, which is not permissible in law and thus his tender papers were rightly rejected. 6. Sri Biswal, learned counsel for the opposite party no.4 has submitted that though the petitioner possesses Service Tax Registration Certificate in his own name, he did not furnish it and the one which he has furnished was that of his firm, which is not permissible in law and thus his tender papers were rightly rejected. He has also raised the question of eligibility of the petitioner for grant of such tender as, according to opposite party no.4, the petitioner is an ‘A’ Class Contractor whereas the contract in question could have been issued only to ‘B’ Class Contractors and not to ‘A’ Class Contractors. 7. It is submitted that with regard to such grievance, the petitioner had raised an objection in March, 2016 which ought to have been considered by the opposite party-IDCO. However, what we notice is that the tender call notice was issued by the opposite party-IDCO only on 16.04.2016 and thus, any objection which may have been raised in March, 2016 could not have been with regard to the present tender call notice. As such, the objection of the petitioner in this regard does not merit consideration. 8. The question of reasons not being assigned in the order and thereafter being provided in the counter affidavit has been decided by the Apex Court as well as this Court in a series of decisions and it has been held that reasons cannot be substituted by way of filing counter affidavit. Relying on the decision of the Apex Court in the case of Mohinder Singh Gill and another vs. The Chief Election Commissioner, New Delhi and others, AIR 1978 SC 851 as well as several other decisions of the Apex Court, our Division Bench in the case of M/s. Shree Ganesh Construction vs. State of Orissa and others, 2016 (II) OLR –237, has held that when a cryptic order of cancellation of tender is made without assigning any reason and is subsequently explained in the counter affidavit, the same would not be permissible in law. 9. As such, providing reasons for rejecting the technical bid of the petitioner in the counter affidavit would not suffice, when no such reason has been assigned by the opposite party in the order rejecting technical bid of the petitioner. 9. As such, providing reasons for rejecting the technical bid of the petitioner in the counter affidavit would not suffice, when no such reason has been assigned by the opposite party in the order rejecting technical bid of the petitioner. Even otherwise, the question that the petitioner having furnished the Service Tax Registration Certificate in the name of M/s. Jagannath Fabricator, of which he himself is the sole proprietor, is not a question which could have been raised by the opposite party when the opposite party itself had accepted the same Service Tax Registration Certificate of the firm while awarding three earlier contracts in the name of the petitioner. Such averments have been specifically made in paragraph-5 of the rejoinder affidavit, to which reply has been given in paragraph-10 of the further affidavit filed by the opposite parties No.1 to 3, wherein it has been stated that the earlier contracts were awarded to the petitioner on the basis of the Service Tax Registration Certificate of M/s. Jagannath Fabricators, but subsequently the opposite party-IDCO had received objections from certain persons and after considering the said objections, the petitioner was found to be technically disqualified. It is not stated as to when and from whom such objections were received by the opposite party-IDCO. Even if, the same is taken as correct, it is settled law in view of law laid down in State of Orissa v. Dr. (Miss) Binapani Dei & others, AIR 1967 SC 1269 ; Sirsi Municipality v. Cecelia Kom Francis, AIR 1973 SC 855 ; Sayeedur Rehman v. The State of Bihar & others, AIR 1973 SC 239 ; and Smt. Maneka Gandhi v. Union of India & others, AIR 1978 SC 597 ; and, subsequently, in a plethora of decisions the Apex Court has held that before passing any order which may adversely affect a party, the party is entitled to be given an opportunity especially when on the basis of the Service Tax Registration Certificate of the firm, the opposite party-IDCO thus had been consistently awarding contracts in favour of the petitioner. 10. As regards the question of the petitioner possessing separate Service Tax Registration Certificate in his own name, it has been submitted by the learned counsel for the petitioner that the same has been obtained subsequently after the petitioner surrendered such certificate which was in the name of the firm. 10. As regards the question of the petitioner possessing separate Service Tax Registration Certificate in his own name, it has been submitted by the learned counsel for the petitioner that the same has been obtained subsequently after the petitioner surrendered such certificate which was in the name of the firm. We need not go into this question as the same is not an issue before us in this petition. 11. Learned counsel for the opposite party-IDCO has relied on the proceedings of the Tender Committee dated 31.05.2016 in which the reason for rejecting the technical bid of the petitioner has been given that the petitioner did not submit the requisite documents in support of Service Tax Registration. Copy of the resolution of the said proceedings of the Technical Committee dated 31.05.2016, admittedly, has not been furnished to the petitioner. Even otherwise, the order was uploaded in the website on 07.06.2016 and the price bid was to be opened on the very next date, i.e., 08.06.2016. As such, there was no occasion for the petitioner to ask the opposite party-IDCO to furnish the reasons, if any, for rejecting his bid. The petitioner immediately approached this Court on 09.06.2016. From this, we find that the petitioner has been vigilant about his rights and has not delayed in any manner in enforcing his rights. 12. In view of the aforesaid, we are of the opinion that the order dated 07.06.2016 rejecting the technical bid of the petitioner cannot be sustainable in the eye of law and the same is hereby quashed. We are informed that during pendency of the writ petition, the contract has been awarded to the sole remaining bidder, i.e., opposite party No.4. If that be so, then keeping in view that the order dated 07.06.2016 has been quashed, the opposite party-IDCO is directed to pass order for cancelling the contract and, if so required, issue a fresh tender call notice in accordance with law. 13. At this stage, Sri Biswal, learned counsel for the opposite party No.4 has submitted that the work which the opposite party No.4 has completed in terms of the contract awarded on 10.08.2016 may be excluded for future contract and he may be paid for the work already done. Such request can be looked into by the opposite party-IDCO, if opposite party No.4 files any such claim before the opposite party- IDCO. Such request can be looked into by the opposite party-IDCO, if opposite party No.4 files any such claim before the opposite party- IDCO. The writ petition stands allowed to the extent indicated above. No order as to costs.