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2016 Supreme(Ori) 797
IN THE HIGH COURT OF ORISSA, CUTTACK
VINEET SARAN AND B.R. SARANGI, JJ.
Prafulla Kumar Pradhan - Petitioner
Versus
State of Odisha and Others - Opp. Parties
W.P.(C) No.4349 of 2016
Decided On : 03-11-2016
For the Petitioner: M/s. S.K. Dash, A.K. Otta, (Mrs.) A. Dhalsamanta, B.P. Dhal and (Miss) S. Das.
For the Opp. Parties : Mr. P.K. Muduli, M/s. Barada Prasad Pattanaik, Bhakti Prasad Pattanaik, B.S. Raiguru and A. Mohanty, M/s. S. Pani, S.S. Deo, K.C. Sethi and I.J. Begum.
Headnote:1. TENDER - Distribution system in connection with water supply - O.P. No.4 having failed to satisfy the eligibility criteria in terms of Sub-clause (i) of Clause (6) of the Brochure incurred disqualification - Subsequently, on the representation of O.P. No.4, his tender was considered and he was selected for execution of the work in question - Writ - Discussing the facts, contention and provisions of law laid down in cited cases held, consideration of the bid of O.P. No.4 by the Technical Evaluation Committee on his representation to make him qualify in the said bid, amounts to unreasonable and arbitrary exercise of power and as such malafide - Selection of O.P. No.4 to carryon the work also cannot sustain - Directions issued.
2. JUDICIAL REVIEW - A Court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself questions indicated.
(i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone;
OR
(ii) Whether the process adopted or decision made is so arbitrary and irrational that the court can say: "the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached"; (ii) Whether public interest is affected.
If the answers are in the negative, there should be no interference under Article 226."
JUDGMENT :
B.R. SARANGI, J.
The Chief Engineer, Public Health (Urban), Odisha, Bhubaneswar-opposite party no.2 floated a tender, having distinct identification no. SEPHBBSR-04(2)/2015-16 dated 17.10.2015, inviting applications from the intending bidders to participate in the national competitive bidding through e-procurement for distribution system in connection with water supply of Balugaon-Banapur N.A.C. through Salia reservoir in conformity with the terms and conditions of the tender call notice.
2. The petitioner, who was initially an ‘A’ Class contractor and with valid licence, successfully executed similar nature of work under the State and subsequently became a special class contractor, having satisfied all the eligibility criteria, submitted his application through e-procurement pursuant to such advertisement. Along with the petitioner, opposite party no.4 had also participated, but, he, having failed to satisfy the eligibility criteria in terms of Sub-clause (i) of Clause (6) of the brochure under Annexure-1, incurred disqualification. Subsequently, on the representation of opposite party no.4, his tender of was considered and he was selected for execution of the work in question. Being aggrieved by such conduct of the authorities, the petitioner has approached this Court by filing the present writ petition.
3. Mr. S.K. Dash, learned counsel for the petitioner specifically urged before this Court that opposite party no.4 submitted his tender paper without satisfying the eligibility criteria, as required under Sub-clause (i) of Clause (6) of the brochure. Though the intending bidders were required to have commissioned similar nature of work valuing not less than Rs.90.33 lakhs in any one year within the last five years, on erroneous furnishing of information by opposite party no.4, even if he was initially qualified in the technical bid, subsequently, by virtue of the representation filed by opposite party no.4, his case was taken into consideration and was selected for the work in question by relaxing the terms and conditions of the tender call notice, which amounts to mala fide exercise of power by the authority. As such, the selection of opposite party no.4 is liable to be set aside. It is further contended that the eligibility criteria must satisfy the requirement of terms and conditions of the contract and that the rule of game cannot be modified or altered once it is started, in order to favour a certain person. Therefore, he seeks for quashing of the selection of opposite party no.4.
4. Mr. P.K. Muduli, learned Addl. Government Advocate appearing for the State, while refuting the contention of the learned counsel for the petitioner, justified the action of the authority in selecting opposite party no.4 for the work in question. He further stated that no illegality or irregularity has been committed by the authority in selecting opposite party no.4 to execute the work and, for that matter he has relied upon the judgment of the apex Court in Sanjay Kumar Sukla v. M/s. Bharat Petroleum Corporation Ltd. & Ors., AIR 2014 SC 3778 and stated that once the matter has been settled, the Court should not interfere subsequently.
5. Learned counsel for opposite party no.4 supported the contention raised by learned Additional Government Advocate and stated that opposite party no.4 being the beneficiary of the order passed by the State authority, and since in selecting opposite party no.4 no illegality or irregularity has been committed, this Court should not interfere with the decision making process of the committee at this stage.
6. Mr. S. Pani, learned counsel for opposite party no.5 stated that opposite party no.5 was one of the participants in the process of selection, who has not been selected by the opposite parties no. 1 to 3, and being a participant he has been impleaded as opposite party no.5.
7. Having heard learned counsel for the parties and pleadings having been exchanged amongst them, with their consent the matter has
