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2009 Supreme(Ori) 889
IN THE HIGH COURT OF ORISSA
I.M. Quddusi, Sanju Panda, JJ.
PRADEEP KUMAR SAHOO - APPELLANT
Versus
STATE OF ORISSA AND OTHERS - RESPONDENT
Writ Petition (C) No. 16906 of 2008
Decided On : 27-08-2009
S.D. Das, H.S. Satapathy, D.R. Bhokta, N. Bisoi, M. Panda, D. Mohanty, A.N. Sahu and M.M. Swain, for the Appellant; Manoj Kumar Mohanty and S.K. Mohanty, for the Respondent
The court emphasized that administrative instructions without statutory force do not confer legal and enforceable rights on the aggrieved party.
Headnote:
Tender Rejection - Construction of Super Passage - Orissa Public Works Department Code (Vol. I) - Clause 3.5.5 Note-II
Fact of the Case:
The Petitioner challenged the rejection of his tender for the construction of a super passage across Salandi Left Main Canal. The Petitioner, being the lowest tenderer, claimed that the deficiency in depositing the amount was curable and that he had cured the deficiency within the stipulated time. The authorities rejected the Petitioner's tender due to the deficiency in the amount, and the second lowest tenderer's bid was accepted and the contract agreement was executed.
Finding of the Court:
The court found that the Petitioner had not submitted the deficient amount along with the tender papers, and therefore, the plea of the Petitioner offering the deficient amount orally was not accepted. The court also held that administrative instructions without statutory force do not confer legal and enforceable rights on the aggrieved party.
Issues: The main issue was whether the rejection of the Petitioner's tender was justified due to the deficiency in the amount and whether the Petitioner's plea of offering the deficient amount orally was acceptable.
Ratio Decidendi: The court decided that the Petitioner's failure to submit the deficient amount along with the tender papers led to the rejection of the tender. Additionally, the court held that administrative instructions without statutory force do not confer legal and enforceable rights on the aggrieved party.
Final Decision: The writ petition was dismissed as being devoid of merit, and no costs were awarded to the Petitioner.
JUDGMENT :
Sanju Panda, J. - The Petitioner, challenging the action of the opposite parties 1& 2 in rejecting his tender paper for construction of super passage across Salandi Left Main Canal at RD.8910M of I.A.B.P. under A.I.B.P. for the year 2008-09, has filed this writ petition invoking the jurisdiction under Article 227 of the Constitution of India.
2. The facts, as narrated in the writ petition, are as follows:
The Executive Engineer, Salandi Canal Division, Bhadrak on behalf of the Governor of Orissa published a Tender Call Notice inviting applications from the eligible class of contractors registered with the State Government for giving their item rate bids for construction of 14 (fourteen) items of works indicated in the said tender. The sale and receipt of the bid documents started from 1.10.2008 and closed on 16.10.2008 at 3.00 P.M. The Petitioner being an "A" Class registered contractor, purchased the tender paper for the item of works against Sl. No. 11 in the Tender Call Notice i.e. the work for construction of super passage across Salandi Left Main Canal at RD.8910M of I.A.B.P. under A.I.B.P. for the year 2008-09 and submitted the tender paper as per the terms and conditions of the Tender Call Notice. As per the said Tender Call Notice, the tendered is required to deposit the additional performance security to the extent of differential cost of 90% of the admitted cost.
3. For better appreciation, clause-6 of the said Tender Call Notice is extracted below:
6. In case the tender amount of the bidder is less than the estimated cost by more than 10%, the bidder shall deposit the additional performance security to the extent of the differential cost of 90% of the estimated cost and the bid amount, in shape of Post Office Saving Bank Account/NSC/Post Office Time Deposit Account/KVP/Deposit Receipt of schedule Bank duly pledged in favor of the E.E. Salandi Canal Division, Bhadrak and accompany with the tender, failing which the tender will be rejected. The additional performance security of the unsuccessful bidder will be refunded as like EMD.
4. Accordingly, the Petitioner submitted his tender paper at a price less than 10.46 of the estimated cost and deposited Rs. 30,000 towards the differential price in shape of National Savings Certificate. He also deposited Rs. 50,000 as EMD in the shape of fixed deposit and deposited further amount of Rs. 10,400 on 15.10.2008. The Petitioner's tender value for the aforesaid work was Rs. 44,58,945.16 whereas opposite party No. 3 offered the tender at Rs. 44,90,747.65 It is further submitted by the Petitioner that though he deposited Rs. 30,000 towards additional performance security in the shape of National Savings Certificate, on calculation, he found that the exact amount comes to Rs. 33,091.86. Therefore, by way of abundant caution the Petitioner deposited further sum of Rs. 10,400 in shape of Bank Draft -in the name of Executive Engineer. Salandi Canal Division towards the additional performance security on 11.11.2008. Thus, the total amount paid by the Petitioner comes to Rs. 40,400. The Petitioner being the lowest tendered was entitled to be considered and at least the authority should intimate him the reason of rejection. As the Petitioner did not receive any intimation from the Executive Engineer, he sent the said draft by registered post which was received in the office of the Executive Engineer. But the authority without giving any information to the Petitioner and taking note that he is the lowest tendered, in a surreptitious manner allotted the works to opposite party No. 3. Though the Petitioner complied with all the conditions and there was no deficiency on the part of the Petitioner as a lowest tendered for the said work, his tender was rejected. It is submitted by the Learned Counsel for the Petitioner that the deficiency of depositing the amount is curable one and the Petitioner being the lowest tendered, he cured the deficiency within the stipulated time by making a ba
