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2016 DIGILAW 811 (ORI)

Gyanananda Matia v. State of Odisha

2016-09-15

B.R.SARANGI, VINEET SARAN

body2016
JUDGMENT : B.R. SARANGI, J. The Block Development Officer-cum-(Member Convenor) Tender Committee, Panchayat Samiti, Kundra in the district of Koraput issued a tender call notice on 25.01.2016 published in local daily newspaper and also official website in respect of the work “Construction of Panchayat Samiti Building at Kundra” inviting bids from the contractors having ‘B’ and ‘C’ class certificates issued by the PWD and CPWD with approximate tender value of Rs.3,45,800/- under TFC scheme and the work was to be completed within a period of ten months. Pursuant to such tender call notice, the petitioner, along with others including opposite party no.6, submitted their tender papers. The petitioner, being a ‘B’ class contractor and possessing a valid licence, though quoted 14.99% less price, but had not submitted the affidavit as required under Annexure-III to Clauses-45 and 46 of the Detail Tender Call Notice (DTCN). Even though the petitioner was L-1, but opposite party no.6, who had quoted 9.01% less price and was L-2, was selected for award of the work. The petitioner, therefore, against non-award of the work in question in his favour, has approached this Court by means of this writ petition. 2. Mr. Nilakantha Panda, learned counsel for the petitioner specifically urged before this Court that opposite party no.6, being an elected member of the Panchayat Samiti pursuant to the Grama Panchayat election held in the year 2012, his offer could not have been considered by the authority. Although he urged several other questions to declare opposite party no.6 not eligible, but he specifically confined his argument stating that opposite party no.6, being an elected sitting member of the Panchayat Samiti, could not have participated in the tender process and, as such, during pendency of the writ application no work order could have been issued by opposite party no.4 to allow opposite party no.6 to proceed with the work in question. 3. Mr. B.P. Pradhan, learned Addl. Government Advocate appearing for the State opposite parties states that opposite party no.6, being a member of ST community, is entitled to get 10% price preference as per the Government in Works Department’s office memorandum no.10224 dated 01.09.2015. Therefore, if the price preference is given to him, he can be taken into consideration for allotment of the work in question. Hence, in selecting opposite party no.6, no illegality has been committed. Therefore, if the price preference is given to him, he can be taken into consideration for allotment of the work in question. Hence, in selecting opposite party no.6, no illegality has been committed. He further contended that the petitioner, having not submitted the affidavit, as required under Clauses-41, 42 and 45 of the DTCN, his application was defective one and, therefore, the same has rightly been rejected by the authority. 4. Mr. G.S. Namtoar, learned counsel appearing for opposite parties no.5 and 6 states that opposite party no.6, being a Scheduled Tribe ‘C’ class contractor, is entitled to get 10% price preference. If that would be taken into consideration, opposite party no.6, who had satisfied all other conditions, was eligible and, as such, no illegality has been committed by the authority in issuing the work order in his favour to perform the work in question. It is further stated by him that the work in question having already been awarded in favour of opposite party no.6, consequentially, the agreement has been executed on 12.04.2016, layout of the work has been given on 25.06.2016 and during the months of June, July, August and running month, i.e., September more than 50% of the work has been completed. The entire work is to be completed by 30th October and he undertook that opposite party no.6 would complete the entire work on 30.10.2016. 5. We have heard learned counsel for the parties and perused the records. Pleadings between the parties having been exchanged, with the consent of learned counsel for the parties the matter is disposed of at the stage of admission. 6. On perusal of records it reveals that agreement has already been executed with opposite party no.6 on 12.04.2016. The petitioner approached this Court by filing the present writ petition on 29.04.2016. While entertaining the writ petition, this Court specifically passed an order on 10.05.2016 to the following effect: “The submission of the learned counsel for the petitioner is that even though the petitioner had complied with the all the conditions laid down in the tender notice and also submitted his affidavit in compliance of Clauses 41, 42 and 45 of the tender notice, yet his tender has been rejected merely on the ground that no such affidavit was filed. Learned Addl. Government Advocate appearing for the State-opposite parties prays for time to obtain instructions and produce the entire record. Learned Addl. Government Advocate appearing for the State-opposite parties prays for time to obtain instructions and produce the entire record. On his request list this matter on 17.5.2016. Till then, the tender shall not be awarded to any party if the same has not yet been awarded to anybody”. Subsequently, an additional affidavit was filed by the petitioner on 18.05.2016 and on the request of the learned Additional Government Advocate the matter was directed to be listed on 30.06.2016 and interim order dated 10.05.2016 was allowed to continue. On 30.06.2016, this Court issued notice to all the opposite parties including the State opposite parties granting them two weeks time to file counter affidavit and interim order passed on 10.05.2016 was allowed to continue till the next date of listing. Since there was an error in the address of opposite party no.6, the same was permitted to be corrected vide order dated 10.08.2016 and matter was directed to be listed on 25.08.2016. However, the matter could not be listed on the date fixed, but it was listed on 01.09.2016. In the meantime, opposite parties no.2 and 4 filed their counter affidavit on 12.07.2016 justifying their action in selecting opposite party no.6. In paragraph 8 of the counter affidavit it has been specifically stated that opposite party no.6, being a S.T. contractor, is entitled to get 10% price preference as per the Government in Works Department’s office memorandum dated 01.09.2015, and the petitioner having not submitted the affidavit, as required under Clauses-41, 42 and 45 of the DTCN, he was not selected nor the work in question was award in his favour. In response to the said affidavit filed on 12.07.2016, the petitioner filed rejoinder affidavit, paragraph-3 whereof reads as under: “3. That it is respectfully submitted here that, I go between the line of counter affidavit filed by the Opp. Party No.-4 (Block Development Officer-Kundra) and Opp. Party No.-2 (Collector–Koraput) and understood the contents there of, more over in the Counter Affidavit, which was filed by the Opp. Party No.-4, the Opp. Party No.-4, have submitted some false allegation with an oblique motive denying all the allegation made in the Writ Petition, and prayed for its dismissal; but in this connection, the Opp. Party No-4, has suppressed all the material facts and submitted a false Affidavit/statement, in order to help the Opp. Party No.-4, the Opp. Party No.-4, have submitted some false allegation with an oblique motive denying all the allegation made in the Writ Petition, and prayed for its dismissal; but in this connection, the Opp. Party No-4, has suppressed all the material facts and submitted a false Affidavit/statement, in order to help the Opp. Party No.-6, as well as for his personal gain, who at present holding a post of Samiti Member, of the Kundra Panchayat Samiti, represented from the Village Ghumar, where in the Opp. Party No.-4, is the Official Member of the Samiti, as per Rules framed under Section-15-A, of the Panchayat Samiti Act-1959, as such for the aforesaid suppression of facts, and for his personal gain played a foul play, and submitted this Counter Affidavit, before this Hon’ble Court, for this illegal act he may liable to be prosecute under the penal Law, and a Contempt proceeding may be initiated by this Hon’ble Court for the aforesaid submission of false Affidavit, being a responsible officer of State under Panchayatiraj Department, hence this rejoinder Affidavit, before your Lordship’s.” A miscellaneous application was filed by the petitioner, seeking for interim direction from this Court to the opposite parties not to proceed with the construction work in question pending disposal of the writ application, vide misc. case no.12593 of 2016 paragraph-4 whereof states as follows: “4. That it is respectfully submitted here that, after obtaining the papers under R.T.I. Act, the petitioner approached to this Hon’ble Court and filed this Writ Petition, with a prayer to permit him to do this work, as well as for conduct of the Tender process afresh, but it is pertinent to mention here that it was latter came in to light that, the Opp. Party No.-6, is a peoples representative and at present he is holding the post of Samiti Member of the Kundra Panchayat Samiti, and he was contested for the aforesaid post, in respect of Village-Ghumar (S.T.) and he has also secured “1330” numbers of votes in his favour, and declared as elected candidate as Samiti Member, by the Election Officer, for kind perusal of this Hon’ble Court the Photo copy of the aforesaid Election result along with the Votes securing sheets of the contesting Candidates, duly endorsed by the Election Officer, dated 22.02.2012 obtained under R.T.I. Act, is also placed here with this Misc. Case and Marked as ANNEXURE-A/4.” 7. Case and Marked as ANNEXURE-A/4.” 7. In course of hearing, Mr. N. Panda, learned counsel for the petitioner specifically urged that opposite party no.6, being an elected sitting member of Panchayat Samiti, ought not to have participated in the tender process. This fact has not been disclosed by opposite parties no.2 and 4 as well as opposite parties no.5 and 6 in their counter affidavits filed before this Court. But, on the basis of the documents available on record, opposite party no.6 having been elected as Panchayat Samiti Member could not have submitted his tender paper for participating in the tender in question and, as such, it is contrary to the provisions of law. The pleadings made in the rejoinder affidavit, as well as in the misc. case filed by the petitioner mentioned above, have not been denied by the opposite parties. In course of hearing, when a query was made by this Court with regard to the allegations made by the petitioner, both learned Addl. Government Advocate as well as learned counsel appearing for opposite party no.6 admitted that opposite party no.6, in whose favour the work has been awarded, being the elected Panchayat Samiti Member of the Kundra Panchayat Samiti, could not have been awarded with the work. Thereby, the authorities have acted contrary to the provisions of law. In Haryana Financial Corpon. V. Gagdamba Oil Mills, (2002) 3 SCC 496 : AIR 2002 SC 834 , it was held that the obligation to act fairly on the part of the administrative authorities was evolved to ensure rule of law and to prevent failure of justice. This doctrine is complementary to the principles of natural justice which quasi judicial authorities are bound to observe. 8. When this Court passed an interim order on 10.05.2016 and continued till 30.06.2016, the layout could not have been given on 25.06.2016. Thereby, the State-opposite parties have acted in violation of the interim order passed by this Court on 10.05.2016, which was extended by order dated 30.05.2016 and remained valid till 10.08.2016. This clearly indicates that the State-opposite parties, in order to overreach the order passed by this Court, in a clandestine manner have allowed opposite party no.6, the elected member to proceed with the contract work in question. This Court deprecates such conduct of the State-opposite parties. 9. This clearly indicates that the State-opposite parties, in order to overreach the order passed by this Court, in a clandestine manner have allowed opposite party no.6, the elected member to proceed with the contract work in question. This Court deprecates such conduct of the State-opposite parties. 9. In view of aforesaid facts and circumstances, the selection of opposite party no.6 in respect of the work “Construction of Panchayat Samiti Building at Kundra” pursuant to tender call notice dated 25.01.2016 in Annexure-1 is hereby quashed and opposite party no.4-B.D.O., Kundra is directed not to allow opposite party no.6 to proceed with the construction work any further and also not to make any payment for work already undertaken by the said opposite party no.6 in violation of the interim order passed by this Court, henceforth, and retender the balance work by inviting fresh tender in accordance with law. 10. Accordingly, the writ petition is allowed. No order as to cost.