In Commissioner of Police, Bombay v.
Gordhandas Bhanji, AIR 1952 SC 16, the Apex Court held as
follows :
“Public orders publicly made, in exercise of a
statutory authority cannot be construed in the light
of explanations subsequently given by the officer
making the order of what he meant, or of what was
in his mind, or what he intended to do. Public orders
made by public authorities are meant to have public
effect and are intended to affect the acting and
conduct of those to whom they are addressed and
must be construed objectively with reference to the
language used in the order itself. Orders are not like
old wine becoming better as they grow older.”
Similar view has also been taken in Bhikhubhai Vithlabhai Patel and
others v. State of Gujarat and another, (2008)4 SCC 144.
9. In view of the law laid down by the Apex Court
mentioned supra and looking at the impugned order in Annexure-
4, a conclusion can be drawn that by a cryptic order the
cancellation of tender has been made, which has been explained by
filing subsequent affidavit, the same is not permissible under law.
10. Relying on Air India Ltd. (supra), learned counsel
for the State has urged that in exercise of judicial review, the Court
cannot interfere with the decision, but it can interfere with the
decision-making process on grounds of mala fides,
unreasonableness or arbitrariness and Court should exercise its
discretionary power with great caution and only in furtherance of
overwhelming public interest.
11. In Maa Binda Express Carrier(supra), it is held
that submission of a bid/ tender in response to a notice inviting
tenders is only an offer which State or its agencies are under no
obligation to accept and bidders participating in the tender process
cannot insist that their bids/ tenders should be accepted simply
because a bid is the highest or lowest.
12. None of the judgments referred to by the learned
Addl. Govt. Advocate for the State is applicable to the present
context.
13. In view of the reasons assigned in the foregoing
paragraphs, it appears that since no reasons have been assigned in
the order impugned in Annexure-4 and subsequently by filing
affidavit, the opposite parties have tried to justify their action by
giving explanation, this Court is inclined to interfere with the same.
Thus, the order impugned in Annexure-4 dated 5.2.2016 and the
consequential invitation of bid in Annexure-5 also cannot sustain
and accordingly, the same are hereby quashed.
ORISSA HIGH COURT: CUTTACK
W.P.(C) No. 2656 of 2016
M/s.Shree Ganesh Construction v State of Orissa and others
P R E S E N T :
THE HON’BLE THE CHIEF JUSTICE MR. VINEET SARAN
AND
THE HON’BLE DR. JUSTICE B.R.SARANGI
Dated : 18.05.2016
Dr. B.R.Sarangi, J. M/s.Shree Ganesh Construction, which is a
partnership firm having Special Class Contracter licence under the
Government of Odisha, has filed this petition seeking to quash the
order dated 5.2.2016 cancelling the tender for work “Improvement
to Pejagala Drainage System & its link Drains in Basta Block of
Balasore District under D.I.P. (Phase-1)” on the ground of nonachieving
the minimum qualifying criteria and consequential
invitation for bids issued by the Superintending Engineer, Drainage
Circle, Balasore in e-Procurement Notice No.SEDCBLS-07/2015-16
and Bid Identification No.SEDCBLS/ DDBLS-15/2015-16 in
Annexure-5 dated 8.2.2016.
2. The Superintending Engineer, Drainage Circle,
Balasore in the Department of Water Resources vide Annexure-1
invited bids from the intending candidates throughout the State of
Odisha as well as out-side the State of Odisha to execute seven
nos. of works. As per Clause-3 of the tender call notice, the
authorities have specified the mode of bid/ period of availability of
bid on-line, date and time of bidding on-line, last date of seeking
clarification, date of opening of bid papers etc. In response to the
said bid, the petitioner along with three others submitted their
cover-I technical bid with cover-II financial bid before the authority
concerned within the time specified along with required documents
for qualification, information and eligibility criteria, plans,
specification with R.C., V.A.T. clearance, PAN card, bid security,
no-relation certificate, credentials and affidavit about the
authenticity of documents. The bid documents acknowledged by
the authorities, the technical bid was opened in presence of the
intending bidders in which the petitioner was found to be qualified
in all respect, whereas technical bid so far as other bidders are
concerned, were rejected. As per the technical bid evaluation
summary (at page 16 of the brief), it has been specifically 3
mentioned that the petitioner has „qualified‟ in the technical bid
and subsequently on 15.1.2016 financial bid of the petitioner was
opened in presence of opposite party no.3 and other officers and it
was found that the quoted price of the petitioner is less @ 12.07%
of the total bid amount, consequently it is the acceptable amount
as per clause 14 of the tender call notice. Accordingly, at page 18
of the brief, under the heading “financial bid list”, it has been
specifically mentioned „admitted‟. The petitioner having qualified
both in the technical and financial bid, when it was awaiting for
receiving the work order to execute the same, all on a sudden he
gathered information that on the ground of non-achieving the
minimum qualifying criteria, the tender for the work “Improvement
to Pejagala Drainage System & its link Drains in Basta Block of
Balasore District under D.I.P. (Phase-1)” has been cancelled and
consequently, fresh invitation for the bid has been issued in
Annexure-5. Hence, this petition.
3. Mr.G.Satpathy, learned counsel for the petitioner
urged that the order impugned in Annexure-4 cannot sustain in the
eye of law as no opportunity of hearing has been given to the
petitioner before such cancellation. The petitioner having been
found suitable both in the technical bid and financial bid,
cancellation of the tender pursuant to the impugned letter in
Annexure-4 without complying due provisions of law cannot sustain
and accordingly, he seeks for quashing of the same.4
4. Mr.P.K.Muduli, learned Addl.Govt. Advocate for the
State referring to the counter affidavit strenuously urged that the
petitioner was found responsive as per technical evaluation, which
was uploaded on 14.1.2016 and financial bid was opened and the
summary sheet was uploaded on 15.1.2016 and on detailed
verification of the bid documents of the petitioner, it was observed
that the work credential of Sri Saroj Kumar Sharma, the so-called
th partner of the firm, was not in order in view of their affidavit
dated 24.09.2011 along with the clarification of Law Department
dated 11.3.2002. Therefore, the bid of the petitioner could not be
considered as responsive and hence, the tender was cancelled on
05.2.2016, thereby the authorities have not committed any
illegalities or irregularities in cancelling the tender in Annexure-4,
which does not warrant interference by this Court at this stage. To
substantiate his contention, he has relied upon the judgment in Air
India Ltd. v. Cochin International Airport Ltd. and others,
(2000) 2 SCC 17 and Maa Binda Express Carrier and another
V. North-East Frontier Railway And Others, (2014) 3 SCC 760.
5. Pleadings having been exchanged by the parties,
the matter was heard with the consent of the learned counsel for
the parties.
6. Having heard the learned counsel for the parties
and after going through the records, it appears that the facts
narrated above are not in dispute. On perusal of the impugned
order in Annexure-4 dated 5.2.2016, it appears that by a cryptic
order without assigning any reasons, the tender has been cancelled
and more so, it appears that the said cancellation has not been
communicated to the petitioner. It is admitted fact that the
petitioner has qualified in both the technical and financial bid
pursuant to the invitation bid in Annexure-1. But in order to justify
the action of the authorities, the reasons have been assigned in
paragraph 5 of the counter affidavit, which reads as follows :
“Studied the technical bid papers submitted by
M/s.Shree Ganesh Construction and observed the
followings:
The firm, M/s.Shree Ganesh Construction, in his
technical bid for the work has enclosed a copy of the
clarification of Law Department, Government of Odisha,
in the matter of joint venture/ partnership firm wherein
it is clarified that “where the constituents contribute to
the assets and share the risks of the company/ firm can
only mean the experience of the constituents of that
company / firm (p.27 of Tech.bid)
In the instance case, the partner of the firm Sri
Saroj Kumar Sharma, stands separate from sharing
such responsibility and risks as claimed from the para
11, 12 & 13 of the partnership deed (page-64). Hence,
his experience and credentials cannot be taken in favour
of M/s.Shree Ganesh Construction (clarification enclosed
as P-27 of Tech.bid)
M/s.Shree Ganesh Construction has not
submitted any certificate on credentials in its name and
hence it is presumed that it has no required credentials
of its own.
Hence, the firm is technically not qualified for
the work. As all the bidders are disqualified technically
for the work the tender is hereby cancelled.”
7. In the counter affidavit filed, the reasons have been
assigned, which are not available in the impugned order of
cancellation filed before this Court in Annexure-4 dated 5.2.2016. 6
More so, while cancelling the tender, the principles of natural
justice have not been complied with. It is well settled principle of
law laid down by the Apex Court in Mohinder Singh Gill and
another v. The Chief Election Commissioner, New Delhi and
others, AIR 1978 SC 851 that :
“When a statutory functionary makes an order
based on certain grounds, its validity must be judged
by the reasons so mentioned and cannot be
supplemented by fresh reasons in the shape of
affidavit or otherwise. Otherwise an order bad in the
beginning may by the time it comes to Court on
account of a challenge, get validated by additional
grounds later brought out.”
8. In Commissioner of Police, Bombay v.
Gordhandas Bhanji, AIR 1952 SC 16, the Apex Court held as
follows :
“Public orders publicly made, in exercise of a
statutory authority cannot be construed in the light
of explanations subsequently given by the officer
making the order of what he meant, or of what was
in his mind, or what he intended to do. Public orders
made by public authorities are meant to have public
effect and are intended to affect the acting and
conduct of those to whom they are addressed and
must be construed objectively with reference to the
language used in the order itself. Orders are not like
old wine becoming better as they grow older.”
Similar view has also been taken in Bhikhubhai Vithlabhai Patel and
others v. State of Gujarat and another, (2008)4 SCC 144.
9. In view of the law laid down by the Apex Court
mentioned supra and looking at the impugned order in Annexure-
4, a conclusion can be drawn that by a cryptic order the
cancellation of tender has been made, which has been explained by
filing subsequent affidavit, the same is not permissible under law.
10. Relying on Air India Ltd. (supra), learned counsel
for the State has urged that in exercise of judicial review, the Court
cannot interfere with the decision, but it can interfere with the
decision-making process on grounds of mala fides,
unreasonableness or arbitrariness and Court should exercise its
discretionary power with great caution and only in furtherance of
overwhelming public interest.
11. In Maa Binda Express Carrier(supra), it is held
that submission of a bid/ tender in response to a notice inviting
tenders is only an offer which State or its agencies are under no
obligation to accept and bidders participating in the tender process
cannot insist that their bids/ tenders should be accepted simply
because a bid is the highest or lowest.
12. None of the judgments referred to by the learned
Addl. Govt. Advocate for the State is applicable to the present
context.
13. In view of the reasons assigned in the foregoing
paragraphs, it appears that since no reasons have been assigned in
the order impugned in Annexure-4 and subsequently by filing
affidavit, the opposite parties have tried to justify their action by
giving explanation, this Court is inclined to interfere with the same.
Thus, the order impugned in Annexure-4 dated 5.2.2016 and the
consequential invitation of bid in Annexure-5 also cannot sustain
and accordingly, the same are hereby quashed.
14. The writ petition is accordingly allowed. No cost.
Sd/-
(Dr. B.R. Sarangi, J.)
Vineet Saran, C. J. I agree.
Sd/-
(Vineet Saran, C.J.)
Orissa High Court, Cuttack
The 18th May, 2016
Print Page
Gordhandas Bhanji, AIR 1952 SC 16, the Apex Court held as
follows :
“Public orders publicly made, in exercise of a
statutory authority cannot be construed in the light
of explanations subsequently given by the officer
making the order of what he meant, or of what was
in his mind, or what he intended to do. Public orders
made by public authorities are meant to have public
effect and are intended to affect the acting and
conduct of those to whom they are addressed and
must be construed objectively with reference to the
language used in the order itself. Orders are not like
old wine becoming better as they grow older.”
Similar view has also been taken in Bhikhubhai Vithlabhai Patel and
others v. State of Gujarat and another, (2008)4 SCC 144.
9. In view of the law laid down by the Apex Court
mentioned supra and looking at the impugned order in Annexure-
4, a conclusion can be drawn that by a cryptic order the
cancellation of tender has been made, which has been explained by
filing subsequent affidavit, the same is not permissible under law.
10. Relying on Air India Ltd. (supra), learned counsel
for the State has urged that in exercise of judicial review, the Court
cannot interfere with the decision, but it can interfere with the
decision-making process on grounds of mala fides,
unreasonableness or arbitrariness and Court should exercise its
discretionary power with great caution and only in furtherance of
overwhelming public interest.
11. In Maa Binda Express Carrier(supra), it is held
that submission of a bid/ tender in response to a notice inviting
tenders is only an offer which State or its agencies are under no
obligation to accept and bidders participating in the tender process
cannot insist that their bids/ tenders should be accepted simply
because a bid is the highest or lowest.
12. None of the judgments referred to by the learned
Addl. Govt. Advocate for the State is applicable to the present
context.
13. In view of the reasons assigned in the foregoing
paragraphs, it appears that since no reasons have been assigned in
the order impugned in Annexure-4 and subsequently by filing
affidavit, the opposite parties have tried to justify their action by
giving explanation, this Court is inclined to interfere with the same.
Thus, the order impugned in Annexure-4 dated 5.2.2016 and the
consequential invitation of bid in Annexure-5 also cannot sustain
and accordingly, the same are hereby quashed.
ORISSA HIGH COURT: CUTTACK
W.P.(C) No. 2656 of 2016
M/s.Shree Ganesh Construction v State of Orissa and others
P R E S E N T :
THE HON’BLE THE CHIEF JUSTICE MR. VINEET SARAN
AND
THE HON’BLE DR. JUSTICE B.R.SARANGI
Dated : 18.05.2016
Dr. B.R.Sarangi, J. M/s.Shree Ganesh Construction, which is a
partnership firm having Special Class Contracter licence under the
Government of Odisha, has filed this petition seeking to quash the
order dated 5.2.2016 cancelling the tender for work “Improvement
to Pejagala Drainage System & its link Drains in Basta Block of
Balasore District under D.I.P. (Phase-1)” on the ground of nonachieving
the minimum qualifying criteria and consequential
invitation for bids issued by the Superintending Engineer, Drainage
Circle, Balasore in e-Procurement Notice No.SEDCBLS-07/2015-16
and Bid Identification No.SEDCBLS/ DDBLS-15/2015-16 in
Annexure-5 dated 8.2.2016.
2. The Superintending Engineer, Drainage Circle,
Balasore in the Department of Water Resources vide Annexure-1
invited bids from the intending candidates throughout the State of
Odisha as well as out-side the State of Odisha to execute seven
nos. of works. As per Clause-3 of the tender call notice, the
authorities have specified the mode of bid/ period of availability of
bid on-line, date and time of bidding on-line, last date of seeking
clarification, date of opening of bid papers etc. In response to the
said bid, the petitioner along with three others submitted their
cover-I technical bid with cover-II financial bid before the authority
concerned within the time specified along with required documents
for qualification, information and eligibility criteria, plans,
specification with R.C., V.A.T. clearance, PAN card, bid security,
no-relation certificate, credentials and affidavit about the
authenticity of documents. The bid documents acknowledged by
the authorities, the technical bid was opened in presence of the
intending bidders in which the petitioner was found to be qualified
in all respect, whereas technical bid so far as other bidders are
concerned, were rejected. As per the technical bid evaluation
summary (at page 16 of the brief), it has been specifically 3
mentioned that the petitioner has „qualified‟ in the technical bid
and subsequently on 15.1.2016 financial bid of the petitioner was
opened in presence of opposite party no.3 and other officers and it
was found that the quoted price of the petitioner is less @ 12.07%
of the total bid amount, consequently it is the acceptable amount
as per clause 14 of the tender call notice. Accordingly, at page 18
of the brief, under the heading “financial bid list”, it has been
specifically mentioned „admitted‟. The petitioner having qualified
both in the technical and financial bid, when it was awaiting for
receiving the work order to execute the same, all on a sudden he
gathered information that on the ground of non-achieving the
minimum qualifying criteria, the tender for the work “Improvement
to Pejagala Drainage System & its link Drains in Basta Block of
Balasore District under D.I.P. (Phase-1)” has been cancelled and
consequently, fresh invitation for the bid has been issued in
Annexure-5. Hence, this petition.
3. Mr.G.Satpathy, learned counsel for the petitioner
urged that the order impugned in Annexure-4 cannot sustain in the
eye of law as no opportunity of hearing has been given to the
petitioner before such cancellation. The petitioner having been
found suitable both in the technical bid and financial bid,
cancellation of the tender pursuant to the impugned letter in
Annexure-4 without complying due provisions of law cannot sustain
and accordingly, he seeks for quashing of the same.4
4. Mr.P.K.Muduli, learned Addl.Govt. Advocate for the
State referring to the counter affidavit strenuously urged that the
petitioner was found responsive as per technical evaluation, which
was uploaded on 14.1.2016 and financial bid was opened and the
summary sheet was uploaded on 15.1.2016 and on detailed
verification of the bid documents of the petitioner, it was observed
that the work credential of Sri Saroj Kumar Sharma, the so-called
th partner of the firm, was not in order in view of their affidavit
dated 24.09.2011 along with the clarification of Law Department
dated 11.3.2002. Therefore, the bid of the petitioner could not be
considered as responsive and hence, the tender was cancelled on
05.2.2016, thereby the authorities have not committed any
illegalities or irregularities in cancelling the tender in Annexure-4,
which does not warrant interference by this Court at this stage. To
substantiate his contention, he has relied upon the judgment in Air
India Ltd. v. Cochin International Airport Ltd. and others,
(2000) 2 SCC 17 and Maa Binda Express Carrier and another
V. North-East Frontier Railway And Others, (2014) 3 SCC 760.
5. Pleadings having been exchanged by the parties,
the matter was heard with the consent of the learned counsel for
the parties.
6. Having heard the learned counsel for the parties
and after going through the records, it appears that the facts
narrated above are not in dispute. On perusal of the impugned
order in Annexure-4 dated 5.2.2016, it appears that by a cryptic
order without assigning any reasons, the tender has been cancelled
and more so, it appears that the said cancellation has not been
communicated to the petitioner. It is admitted fact that the
petitioner has qualified in both the technical and financial bid
pursuant to the invitation bid in Annexure-1. But in order to justify
the action of the authorities, the reasons have been assigned in
paragraph 5 of the counter affidavit, which reads as follows :
“Studied the technical bid papers submitted by
M/s.Shree Ganesh Construction and observed the
followings:
The firm, M/s.Shree Ganesh Construction, in his
technical bid for the work has enclosed a copy of the
clarification of Law Department, Government of Odisha,
in the matter of joint venture/ partnership firm wherein
it is clarified that “where the constituents contribute to
the assets and share the risks of the company/ firm can
only mean the experience of the constituents of that
company / firm (p.27 of Tech.bid)
In the instance case, the partner of the firm Sri
Saroj Kumar Sharma, stands separate from sharing
such responsibility and risks as claimed from the para
11, 12 & 13 of the partnership deed (page-64). Hence,
his experience and credentials cannot be taken in favour
of M/s.Shree Ganesh Construction (clarification enclosed
as P-27 of Tech.bid)
M/s.Shree Ganesh Construction has not
submitted any certificate on credentials in its name and
hence it is presumed that it has no required credentials
of its own.
Hence, the firm is technically not qualified for
the work. As all the bidders are disqualified technically
for the work the tender is hereby cancelled.”
7. In the counter affidavit filed, the reasons have been
assigned, which are not available in the impugned order of
cancellation filed before this Court in Annexure-4 dated 5.2.2016. 6
More so, while cancelling the tender, the principles of natural
justice have not been complied with. It is well settled principle of
law laid down by the Apex Court in Mohinder Singh Gill and
another v. The Chief Election Commissioner, New Delhi and
others, AIR 1978 SC 851 that :
“When a statutory functionary makes an order
based on certain grounds, its validity must be judged
by the reasons so mentioned and cannot be
supplemented by fresh reasons in the shape of
affidavit or otherwise. Otherwise an order bad in the
beginning may by the time it comes to Court on
account of a challenge, get validated by additional
grounds later brought out.”
8. In Commissioner of Police, Bombay v.
Gordhandas Bhanji, AIR 1952 SC 16, the Apex Court held as
follows :
“Public orders publicly made, in exercise of a
statutory authority cannot be construed in the light
of explanations subsequently given by the officer
making the order of what he meant, or of what was
in his mind, or what he intended to do. Public orders
made by public authorities are meant to have public
effect and are intended to affect the acting and
conduct of those to whom they are addressed and
must be construed objectively with reference to the
language used in the order itself. Orders are not like
old wine becoming better as they grow older.”
Similar view has also been taken in Bhikhubhai Vithlabhai Patel and
others v. State of Gujarat and another, (2008)4 SCC 144.
9. In view of the law laid down by the Apex Court
mentioned supra and looking at the impugned order in Annexure-
4, a conclusion can be drawn that by a cryptic order the
cancellation of tender has been made, which has been explained by
filing subsequent affidavit, the same is not permissible under law.
10. Relying on Air India Ltd. (supra), learned counsel
for the State has urged that in exercise of judicial review, the Court
cannot interfere with the decision, but it can interfere with the
decision-making process on grounds of mala fides,
unreasonableness or arbitrariness and Court should exercise its
discretionary power with great caution and only in furtherance of
overwhelming public interest.
11. In Maa Binda Express Carrier(supra), it is held
that submission of a bid/ tender in response to a notice inviting
tenders is only an offer which State or its agencies are under no
obligation to accept and bidders participating in the tender process
cannot insist that their bids/ tenders should be accepted simply
because a bid is the highest or lowest.
12. None of the judgments referred to by the learned
Addl. Govt. Advocate for the State is applicable to the present
context.
13. In view of the reasons assigned in the foregoing
paragraphs, it appears that since no reasons have been assigned in
the order impugned in Annexure-4 and subsequently by filing
affidavit, the opposite parties have tried to justify their action by
giving explanation, this Court is inclined to interfere with the same.
Thus, the order impugned in Annexure-4 dated 5.2.2016 and the
consequential invitation of bid in Annexure-5 also cannot sustain
and accordingly, the same are hereby quashed.
14. The writ petition is accordingly allowed. No cost.
Sd/-
(Dr. B.R. Sarangi, J.)
Vineet Saran, C. J. I agree.
Sd/-
(Vineet Saran, C.J.)
Orissa High Court, Cuttack
The 18th May, 2016
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