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2017 DIGILAW 702 (ORI)

Ramachandra Sahoo v. State of Odisha

2017-07-11

K.R.MOHAPATRA, VINEET SARAN

body2017
JUDGMENT : VINEET SARAN, J. The petitioner submitted his bid in response to tender call notice issued by opposite party no.3-Odisha State Civil Supplies Corporation Ltd. (for short, ‘the Corporation’). His bid was for Handling and Transport (H&T) Contract for three units (blocks), namely, Begunia, Bolgarh and Khordha for the year 2013-14 and 2014-15. The bid of the petitioner was found to be the lowest. Clause-9.6 of the tender call notice provides that in case the rate of the lowest Tenderer is not workable and H & T Contractor is selected on cross negotiation, then the Earnest Money Deposit (EMD) of the lowest Tenderer shall be refunded. The petitioner, as well as other tenderers, were invited for negotiation by the District Level Tender Committee (for short ‘DLTC’) on 08.04.2013. Finding that the rate quoted by the petitioner, which was the lowest, was not workable, the petitioner was asked to withdraw from the bidding and consequently the petitioner filed an application for withdrawal. The petitioner then claimed for refund of the EMD amount deposited by him @ Rs.1,00,000/-per unit (i.e., Rs.3,00,000/-for three units), but on the same not being refunded to the petitioner, he has approached this Court for a direction to the opposite parties for refund of the EMD. 2. Heard Mr. Subach Ch.Panda, learned counsel for the petitioner and Mr. B. Sahoo, learned counsel for the opposite parties-Odisha State Civil Supplies Corporation Ltd. and perused the record. 3. The submission of learned counsel for the petitioner is that since it was a case of withdrawal by the petitioner under Clause 9.6 of the tender call notice and the petitioner had withdrawn after negotiation with the DLTC (which had called all the three tenderers for negotiation) as per the said Clause 9.6 itself, the EMD of the petitioner was to be refunded, which has wrongly not been done. It is contended that the District Manager of the Corporation has written to the General Manager of the Corporation on various dates, copies of which have been annexed as Annexures-2, 3 and 6, wherein it is specifically mentioned that under Clause 9.6, the petitioner would be entitled to refund of the EMD amount. It is submitted that despite such recommendation made by the District Manager, who is an officer of the Corporation, the petitioner has not yet been refunded with the EMD amount. 4. Referring to the counter affidavit, Mr. It is submitted that despite such recommendation made by the District Manager, who is an officer of the Corporation, the petitioner has not yet been refunded with the EMD amount. 4. Referring to the counter affidavit, Mr. B. Sahoo has submitted that since the petitioner has voluntarily withdrawn from the bid, he would not be entitled to the benefit of refund. 5. From the documents filed along with the writ petition, which have not been denied by the opposite parties-Corporation in the counter affidavit, it is clear that the District Manager of the Corporation has himself recommended for refund of the amount, basing on the said Clause 9.6 of the tender document. On perusal of the minutes of the proceedings of the meeting of the DLTC dated 08.04.2013, it is clear that it also suggested for acceptance of withdrawal, which was only after cross-negotiation with all the tenderers and the petitioner, who was the lowest bidder. The petitioner was asked to withdraw because of the rate quoted by him being not workable. Hence, we are of the opinion that action of the opposite party-Corporation, in not refunding the EMD, cannot be justified in law. Accordingly, considering the facts and circumstances of the case, we allow the writ petition and direct that EMD amount of Rs.3.00 lakh (rupees three lakh) deposited by the petitioner shall be refunded to him by the opposite party no.3 within two months from the filing of a certified copy of this order before the opposite party No.3.