JUDGMENT :

Vineet Saran, J.

The challenge in this writ petition is to the order dated 28.10.2016 passed by the opposite party no. 2 whereby the Tender Call Notice dated 18.03.2016 has been cancelled.

2. The primary question involved in this petition is as to whether the Tendering Authority would be justified in cancelling the Tender Call Notice, without assigning any reason, even after the Tender Evaluation Committee found two tenders to be valid, and the price bids were opened and recommendation made to the State Government for acceptance of the tender of the lowest bidder. The other question to be considered is whether the reason assigned in the counter affidavit for passing the cancellation order can now be looked into and considered or not; and if yes, then the reasons so assigned in the counter affidavit were justified or not.

3. The brief facts of the case are that in response to the Tender Call Notice dated 18.03.2016 issued by opposite party no.2-Chief Engineer, World Bank Project, Odisha, for “Construction of H.L. Bridge over river Paika near Tipiri on Rahama-Khosalplur-Gobardhanpur road in the district of Jagatsinghpur under NABARD Assistance RIDF-XXII”, three bidders had submitted their bids, which included the petitioner as well as C.P. Mohanty & Associates (private opposite party no.4) and one Eastern India Construction Private Limited. The Tender Evaluation Committee, vide its report dated 20.06.2016, found the bid of the opposite party no.4 to be technically invalid and, as such, the price bids of the other two bidders, found to be technically qualified (i.e. the petitioner and Eastern India Construction Private Limited,) were opened on 21.06.2016. The price quoted by the petitioner was found to be the lowest, which was 4.39% above the estimated cost. The petitioner was thereafter called for negotiation for lowering his bid price, to which the petitioner responded and assigned reasons for being unable to lower the price offered by him for execution of the work. After the petitioner declined to lower his bid, which was conveyed lastly by communication dated on 5.7.2016, the opposite party no.2-Chief Engineer, on 02.08.2016, recommended to the State Government for finalization of the contract in favour of the petitioner, who was the lowest bidder. There was no communication with the petitioner after 05.07.2016, by which the petitioner had expressed his inability to negotiate the price. Then, after a gap of nearly three months, on 28.10.2016, the impugned order cancelling the Tender Call Notice dated 18.03.2016 was passed by the opposite party no.2. Challenging the same, this writ petition has been filed, with a further prayer to award the contract in favour of the petitioner.

4. We have heard Shri B.P. Das, learned counsel for the petitioner, and Shri B.P. Pradhan, learned Addl. Government Advocate appearing for the State-opposite parties no.1, 2 and 3, as well as Shri S. Dwibedi, learned counsel for the private opposite party no.4 at length and carefully perused the record. Pleadings between the parties have been exchanged and with consent of learned counsel for the parties, this writ petition is being disposed of at the admission stage.

5. The submission of the learned counsel for the petitioner is that the impugned order has been passed without assigning any reason whatsoever. It is contended that the reasons assigned in the counter affidavit cannot be looked into and considered for deciding this case. Learned counsel submits that it is settled legal position that the explanation given subsequently in the counter affidavit, after passing of the order of cancellation, is not to be taken into account, in the absence of any reason assigned in the cancellation order. It is contended that in the counter affidavit it is disclosed that after the bid was accepted by the Tendering Authority and sent for approval of the State Government on 02.08.2016, an enquiry was got conducted, which was on the basis of a complaint dated 16