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2018 DIGILAW 698 (ORI)

DILLIP KUMAR LENKA v. STATE OF ODISHA

2018-07-31

B.R.SARANGI, VINEET SARAN

body2018
JUDGMENT : B.R. SARANGI, J. 1. Executive Engineer, Rengali Right Canal Division No.II, Mahisapat, Dhenkanal issued tender call notice no.1 of 2002-2003 on 24.10.2002 inviting sealed tender inconformity with Detailed Tender Call Notice (DTCN) from the intending and eligible contractors registered with the Government of Odisha or equivalent of Government of India/CPWD/Railway/Military Engineering Service in respect of the work "Excavation of Gondia Branch Canal from RD 00 KM to RD 1.380 KM and Sambarapatia Minor including its structure of RBC of RIP", besides seven other works, for an amount of Rs. 90,18,830.65 with the date of opening as 20.02.2002. Twenty-nine numbers of bidders, including the petitioner, participated in the tender process for the work in question. The petitioner, being an 'A' class contractor, became the lowest bidder quoting Rs. 74,08,796.50, which was 17.85% less than the amount put to tender. A comparative statement was prepared and submitted by the Executive Engineer-opposite party no.4, along with the justification of his quoted rates by the petitioner to higher authority for approval. Accordingly, the tender was approved in favour of the petitioner, at his quoted rate of 17.85% less, by the Chief Engineer and Basin Manager, Brahmani Right Basin, vide his letter no. 1559 dated 22.02.2003. Consequentially, a letter of acceptance was issued on 25.02.2003 by the Executive Engineer to the petitioner informing him that his tender has been accepted and to furnish relevant documents as per DTCN along with performance security amounting to Rs. 11,63,796.26 in shape of NSC/KVP/POTD (Full form) within 15 days, i.e., 07.03.2003. 2. As per the conditions stipulated in the DTCN Clause-1.2.2, the petitioner was to deposit performance security, i.e., the differential cost between the amount put to tender and less quoted amount by the petitioner in each item, which comes to Rs. 11,63,796.26. But the petitioner, on 12.03.2003, expressed his inability to deposit the entire amount of performance security and requested to deduct the same from his running bills or allow him three months time to deposit the same. The opposite parties did not accept the same, as the tender document does not allow any such concession and the petitioner had accepted all conditions stipulated in the tender document prior to participation in the tender process. The opposite parties did not accept the same, as the tender document does not allow any such concession and the petitioner had accepted all conditions stipulated in the tender document prior to participation in the tender process. Accordingly, letter dated 13.03.2003 was issued to the petitioner declining the proposal and giving him time till 23.03.2003 for deposit of the performance security and for execution of the agreement after furnishing requisite documents. The petitioner did not respond to the said letter within the time stipulated. Therefore, opposite party no.4, vide office order dated 31.03.2003, directed for forfeiting the EMD (Earnest Money Deposit) of 1% amounting to Rs. 90,200.00, for non-execution of agreement within the stipulated period as per Clause 4.1 of the DTCN. 3. As the petitioner was an Engineer contractor, he was exempted from depositing any EMD, while participating in the tender, as per Works Department circular no.19078 dated 02.09.1969. The Executive Engineer-opposite party no.4 informed this fact to the Registering Authority, i.e., Chairman of Committee of Chief Engineers to deduct the amount from any dues of the petitioner and to cancel the registration licence issued to the petitioner for violation of Rule-11(a) of PWD Contractors Registration Rules, 1967. Accordingly, an explanation/show cause was sought from the petitioner, pursuant to which the petitioner responded and filed his reply on 18.07.2003, which was forwarded to the Executive Engineer-opposite party no.4 for his comments, vide letter dated 22.09.2003 of the Registering Authority. On its receipt, the Executive Engineer-opposite party no.4 furnished his reply to the Registering Authority on 24.11.2003. Consequentially, the Registering Authority passed an order on 21.02.2004 vide Annexure-8 cancelling the 'A' class registration certificate of the petitioner under Rule 11(a)(1) of the PWD Contractors Registration Rules, 1967, hence this application. 4. Learned counsel appearing for the petitioner strenuously urged before this Court that while cancelling the licence of the petitioner no opportunity of hearing was given to him and thereby the authorities have committed gross illegalities and irregularities in depriving the petitioner, who was the lowest tenderer, from getting the work, particularly when the petitioner requested to deduct the performance security amount of Rs. 11,63,796.26 from the Running Account Bills, instead of insisting to deposit the same. 11,63,796.26 from the Running Account Bills, instead of insisting to deposit the same. In these circumstances, the drastic measure taken vide Annexure-8 for cancellation of the licence of the petitioner, who is an Engineer contractor, cannot sustain in the eye of law and, therefore, seeks for quashing of the same. 5. Mr. R.K. Mahapatra, learned Government Advocate appearing for the opposite parties contended that the petitioner having participated in the tender process with eyes wide open with regard to the conditions stipulated in the tender call notice and also the DTCN, he cannot subsequently turn around and put a condition with regard to implementation of the conditions already stipulated in the tender call notice. The petitioner, being lowest tenderer, was to deposit additional performance security within the stipulated time. Since petitioner failed to comply with the same, action as deemed fit and proper was taken against him, and thereby no illegality or irregularity has been committed by the authority in passing the order impugned so as to warrant interference of this Court at this stage. To substantiate his contention, he has relied upon the judgment of this Court rendered in M/s Auto Oasis Dealer v. M/s Indian Oil Corporation Ltd.,2016 Supp2 OrissaLR 237. 6. We have heard learned counsel for the petitioner and Mr. R.K. Mahapatra, learned Government Advocate appearing for the State opposite parties and perused the records. Pleadings having been exchanged between the parties, with the consent of learned counsel for the parties the matter is being finally disposed of at the stage of admission. 7. Learned counsel appearing for the petitioner though initially sought adjournment, on perusal of the order-sheets we find that similar attempt was made by the petitioner on 21.03.2017, 09.08.2017 and 04.09.2017, therefore, since it is an old case of the year 2004, we were not inclined to grant further adjournment and allowed the counsel to argue the matter on the basis of the materials available on record. 8. The facts, which have been narrated above, are undisputed. The petitioner, having participated in the tender process accepting the conditions mentioned in the DTCN and being L-1, was to abide by the same and deposit the differential amount computed item-wise which comes to Rs. 11,63,796/-in terms of Clause 1.2.2 of the DTCN. 8. The facts, which have been narrated above, are undisputed. The petitioner, having participated in the tender process accepting the conditions mentioned in the DTCN and being L-1, was to abide by the same and deposit the differential amount computed item-wise which comes to Rs. 11,63,796/-in terms of Clause 1.2.2 of the DTCN. As such, the petitioner had put his signature, having gone through the tender documents, on each page of the tender papers, prior to participating in the tender, which he had admitted in his explanation to the Registering Authority. The condition that the bidders, who bid 10% less or lesser than that, were to deposit the differential amount between the 10% reduced project cost and the price quoted by the bidders was not prevalent at the time of tender for this particular work. An amendment was made to Clause 3.5.5 of OPWD Code Volume-I, which relates to F2 contract, on 19.01.2004 by inserting Note-II which stipulated that additional performance security would be deposited by the successful bidder whose bid amount was seriously unbalanced, i.e., more than 10% less. In such case, the successful bidder would deposit the additional performance security to the tune of differential cost between 90% of the estimated cost put to tender and the amount quoted by the successful bidder. Therefore, when the petitioner with eyes wide open and with full knowledge and comprehension of the said provision entered into the contract, he could not have subsequently turned around and contend that he was not agreeable to settlement of dispute by way of arbitration but by a named arbitrator who is an employee of other party. Furthermore, no one can be permitted to say that he is bound by only one part of the agreement and not the other part, unless such other part is impossible of performance or is void being contrary to the provisions of the Act and such part is severable from the remaining part of the agreement. 9. For just and proper adjudication of the case, Clause 1.2.2 of the DTCN is extracted hereunder:- PERFORMANCE SECURITY FOR UNBLANCED ITEMS "The contractor shall furnish performance security in shape of N.S.C.,/K.V.P./Post office time deposit at the time of agreement equal to the amount which is differential cost between the amount put to tender and the less quoted amount by the contractor in each item" 10. In view of aforesaid provisions of the contract, the petitioner is bound to deposit the less amount as per the tender condition mentioned above. If the petitioner has signed the documents with the conditions stipulated in the DTCN, then he has to follow the same, instead of refusing to comply with the same. As the demand has been raised in compliance of the provisions contained in the agreement itself and, after going through the DTCN and all the relevant documents, the petitioner submitted his tender papers for the work in question, he is estopped from saying that he is not liable to comply the provisions of the DTCN at this stage. 11. Needless to say, adequate opportunity had been given to the petitioner for compliance of the condition of the tender document and the same having not been complied, necessary show cause was called for from him, to which he had given reply. On receipt of the said reply, the Committee of High Officials, of which Engineer-in-Chief, R & B was the convener and Chairman, considered and decided to cancel the 'A' Class licnece of the petitioner. Fact remains, the contract licence of the petitioner was valid for a period of three years, which may be renewed by the competent authority as per procedure prescribed by the OPWD Code. 12. In view of such position and keeping in view the ratio decided by this Court in M/s Auto Oasis Dealer, we are of the considered opinion that no illegality or irregularity has been committed by the authority by passing the impugned order dated 31.03.2003 in Annexure-5 in canceling the 'A' class licence of the petitioner as per Rule-11(a)(1) of the PWD Contractors Registration Rules, 1967. 13. Accordingly, the writ application merits no consideration and the same is hereby dismissed. No order to costs.