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2017 DIGILAW 655 (ORI)

Chintamani Patra v. State of Odisha

2017-07-03

K.R.MOHAPATRA, VINEET SARAN

body2017
JUDGMENT : Vineet Saran, J. 1. In response to tender call notice issued by opposite party no.4-Tahasildar, Banki on 29.02.2016 inviting tenders for long term lease of sairat source, namely, Kotadwar Sand Ghat, the bidders were to submit their bid documents along with necessary solvency certificate or bank guarantee valid for 18 months to the tune of the bid amount and royalty payable for a period of one year added together. There were other conditions also to be fulfilled but this is the one which is of concern in the present case. The bids were to be submitted in Form-‘J’ along with other documents, between 21.03.2016 and 28.03.2016, which were to be opened on 29.03.2016. Six bidders had participated, in which the bid of opposite party no.6 was the highest at Rs.81,81,839/- and that of the petitioner was the second highest at Rs.58,19,999/-. The solvency certificate was to be provided by the respective bidders for the bid amount, plus the royalty amount for one year, which in the case of opposite party no.6 came to Rs.1,23,61,830/- and that of the petitioner came to Rs.99,99,999/-. 2. The admitted case of the parties is that the petitioner submitted the solvency certificate for an amount of Rs.1.00 Crore along with the bid documents, which was valid for a period of 18 months. On the contrary, the solvency certificate furnished by opposite party no.6 along with the bid documents was for an amount of Rs.1,06,74,400/- instead of the requisite amount of Rs.1,23,61,830/-. The shortfall amount is said to have been deposited by the opposite party no.6 in the bank on 28.03.2016, by way of term deposit of Rs.17.00 lakh, for which a certificate was issued by the bank on 29.03.2016 and the same was submitted by the opposite party no.6 on the date of the opening of the financial bid, i.e. 29.03.2016. 3. The submission of the learned counsel for the petitioner is that because there was non-compliance of furnishing of the necessary solvency certificate of the entire amount by opposite party no.6 along with the bid documents, the bid of opposite party no.6 could not have been accepted, and that of the petitioner ought to have been accepted as he was the second highest bidder. Objection, in this regard, was raised before the Tahasildar at the time of opening of the bid, which was rejected by the Tahasildar vide order dated 29.03.2016. Objection, in this regard, was raised before the Tahasildar at the time of opening of the bid, which was rejected by the Tahasildar vide order dated 29.03.2016. The said order of the Tahasildar is also challenged in this writ petition. 4. We have heard Shri S.K. Mishra, learned counsel for the petitioner as well as Shri B.P. Pradhan, learned Addl. Government Advocate for the State-opposite parties 1 to 4, Shri P.N. Mishra, learned counsel for opposite party no.5-Andhra Bank and Shri S. Behera, learned counsel for the contesting private opposite party no.6 and perused the record. Pleadings between the parties have been exchanged and by consent of learned counsel for the parties, this writ petition is being disposed at the admission stage. 5. The background facts, as stated above, are not disputed by the learned counsel for the parties. 6. It is not disputed that the solvency certificate of the entire amount of Rs.1,23,61,830/- was not deposited by the opposite party no.6 along with the bid documents. On perusal of the terms and conditions of the tender notice, it is clear that submission of such solvency certificate, which was to be valid for a period of 18 months, was necessary to be furnished along with the bid documents, the last date of which was 28.03.2016. By merely depositing the balance amount of Rs.17 lakh with the bank by way of term deposit receipt, which was valid for a period of 400 days, would not be sufficient on two counts. Firstly, the certificate of having made such term deposit with the bank, issued by the bank on 29.03.2016, was submitted by opposite party no.6 on 29.03.2016, which was after the last date of submission of the tender documents, which was 28.03.2016. Secondly, the solvency certificate was to be valid for a period of 18 months, whereas the certificate of term deposit of Rs.17.00 lakh by opposite party no.6 with the opposite party bank was valid for a period of only 400 days, which would be for about 13 months and thus five months short of 18 months. The terms and conditions laid down in the tender documents had to be strictly complied with by the parties. The terms and conditions laid down in the tender documents had to be strictly complied with by the parties. If grant of relaxation by the Tahasildar or any other authority is permitted, and conditions are allowed to be varied after the last date of submission of documents, the same would create confusion, in which case, finality would not be able to be given to the tender process. The same can also not be permitted in law, as the furnishing of documents along with the bid was an essential condition of the tender notice. 7. It was a mandatory condition for the bidders to submit the solvency certificate for the bid amount plus royalty along with the bid documents, which was to be valid for 18 months. In the present case, the opposite party no.6 has admittedly not furnished the same within the time provided for in the notice, and further the one provided subsequently was not in terms of the conditions laid down in the tender notice, because the solvency was to be valid for a period of 18 months, whereas the term deposit filed by the petitioner subsequently was only for 400 days. As such, the order of the Tahasildar accepting such bid of opposite party no.6 cannot be justified in law. 8. We may mention that we are not going into the question of sufficiency of providing the term deposit in lieu of the solvency certificate, because term deposit itself was not for the period required in the tender notice and was also submitted after the last date of submission of bid. 9. In such view of the matter, the order of the Tahasildar, whereby the bid of the opposite party no.6 has been accepted, is quashed. In the facts and circumstances of the case, since there is a vast difference between the highest bid of the opposite party no.6 and that of the second highest bid of the petitioner and sufficient time has lapsed since the bids were invited in March 2016, we accept the contention of the learned Addl. Government Advocate and direct that fresh proceeding be initiated as expeditiously as possible, for the grant of lease of the sand sairat in question. The writ petition stands allowed to the extent indicated above. No order as to costs.