TMI Blog2023 (5) TMI 1233X X X X Extracts X X X X X X X X Extracts X X X X ..... should not have filed this writ petition claiming consideration of his bid on the ground that he had quoted higher price than opposite party no.5. In TIRUMALA TIRUPATI DEVASTHANAMS VERSUS K. JOTHEESWARA PILLAI (D) BY LRS OTHERS [ 2007 (5) TMI 594 - SUPREME COURT] , the apex Court held that the principle on which the writ of mandamus can be issued are well settled and referring to BIHAR EASTERN GANGETIC FISHERMEN COOPERATIVE SOCIETY LTD. VERSUS SIPAHI SINGH [ 1977 (9) TMI 114 - SUPREME COURT] , the apex Court observed that The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance. In view of the ratio decided in aforementioned judgment, it is made clear that writ of mandamus can be issued where there is a statutory duty imposed upon the officer concerned and there is a fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in brief, is that the Tahasildar-cum-Competent Authority-opposite party no.4 issued notice dated 05.07.2022 under Annexure-2 inviting bids for settlement of different Sairat Sources, which includes Ghumal Sand Sairat , vide Sairat Case No. 19/2021-22. As per the said notice, the last date for dropping the bids was fixed to 16.08.2022 by 5.30 PM and the scheduled date for opening of the bids was fixed to 17.08.2022 at 11.00 AM. Under clause-4 of the said tender call notice it was specifically provided that, on the scheduled date if no bid is submitted, then the next date for receipt of the bids will be from 23.08.2022 to 29.08.2022 up to 5.30 PM and the next date for opening of the bids will be 30.08.2022 at 11.00 A.M. 2.1 After the tender call notice under Annexure- 2 was published, three corrigenda were published by opposite party no.4-Tahasildar-Cum-Competent Authority on 20.07.2022, 04.08.2022 17.08.2022 under Annexures-3, 4 5 respectively. The significant corrigendum pertaining to the dates of submission of bids, etc. was published on 17.08.2022, which modified the date of submission of bids from 18.08.2022 to 22.08.2022 up to 5.30 PM. The reason, as mentioned for such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asons best known, did not accept the same and after opening the tenders, while considering the bids, made an endorsement as to receipt of the bank guarantee at 5.30 PM on 22.08.2022. After finalizing the tender, the competent authority prepared the list of bidders by letter no.3073 dated 05.09.2022. Vide notice no.3080 dated 05.09.2022, objections were invited from public giving 7 (seven) days time with regard to the tender and documents submitted by opposite party no.5. The competent authority communicated opposite party no.5, the highest bidder, and called on him to convey acceptance and deposit the amount, as prescribed under the rules. 2.5. Against rejection of the bid by the competent authority, the petitioner preferred Appeal Case No.02 of 2022 before the Sub-Collector S.D.M., Bamanghaty, Rairangpur, who issued letter dated 28.09.2022 to the Branch Manager, HDFC Bank seeking clarification as to the authenticity of the bank guarantee issued on 22.08.2022. The Bank Manager, HDFC Bank, in turn, vide letter dated 01.10.2022, replied to the Sub- Collector SDM, Bamanghaty, Rairangpur that the bank guarantee is genuine. The clarification given by the Branch Manager, HDFC Bank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at on 05.07.2022, the Tahasildar, Jamda-opposite party no.4 had issued a notice inviting applications from the interested bidders for auction of one sand quarry, namely, Ghumal Sand Quarry under Jamda Tahasil and two stone quarries, namely, Deokundi Stone Quarry and Kainpur Stone Quarry under the provisions of Odisha Minor Mineral Concessions Rules, 2016. It is contended that on 17.08.2022 the tender box was opened, wherein it was found that there was a single bid with regard to Ghumal Sand Sairat. Therefore, it was decided for issuance of 2nd bid notice. Accordingly, on 17.08.2022, the 2nd bid notice was issued by the Tahasildar, Jamda inviting applications from the interested bidders with regard to Ghumal Sand Quarry, wherein, the last date of submission of application was posted to 22.08.2022 at 5.30 P.M. and further it was decided to open the tender box on 23.08.2022 at 11.00 AM. Pursuant to the aforesaid corrigendum/bid notice, five bidders including the petitioner submitted their bids. On 23.08.2022 at 11.00 A.M. the tender box was opened in presence of the bidders along with their representatives. After opening of bids, it was found that the petitioner had quoted a sum of Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,00,000/- issued by ICICI Bank and State Bank of India cumulatively and the application having found in order in all respect, the bid submitted by opposite party No.5 was accepted whereas the bid of the petitioner was defective one, as he had not submitted bank guarantee along with the bid documents, which was the requirement under Rule 27(4)(iv) of the OMMC Rules, 2016. Merely furnishing bank s request letter, which had also not disclosed the date, name of the bank, accounts details of the petitioner, bank guarantee number and bank s seal, the same cannot be construed to be a document in conformity with Rule-27(4)(iv) of OMMC Rules, 2016 and, as such, no inference can be drawn that application submitted by the petitioner was complete in all respect. Therefore, opposite party no.4 is well justified in rejecting the bid of the petitioner, as the same was incomplete one and, more so, the petitioner had submitted the bank guarantee at 5.30 PM of 23.08.2022, which was much beyond the stipulated period. After acceptance of bid submitted by opposite party no.5, the Tahasildar, Jamda received the security amount demand draft amounting to Rs.15,07,125/- from opposite party no.5 and further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er cum and though he had mentioned Rs.150/- erroneously, the same was struck down by putting his initial in the said column. It is further contended that notice inviting tender was issued on 05.07.2022 and if the petitioner was so much interested to participate in the process of tender, he could have applied for bank guarantee from the very initial date so that he could have filed the same before the scheduled date and time. Further, the letter of the bank which was produced by the petitioner along with the application form did not disclose any information. Therefore, there was no scope for relaxing of tender conditions so as to accept the bank guarantee of the petitioner beyond the last date of submission of application, i.e. 22.08.2022 at 5.30 PM. As such, the Tahasildar, Jamda has rightly rejected the bid of the petitioner, which has been confirmed by the Sub- Collector S.D.M., Bamanghaty, Rairangpur, vide order dated 15.10.2022 in Appeal Case No.02 of 2022, which does not require interference of this Court at this stage. To substantiate her contentions, learned counsel appearing for opposite party no.5 has relied upon Vidarbha Irrigation Development Corporation and others ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted by the petitioner was not incorporated by the bank guarantee or the previous year s income tax return, it was defective one and cannot be entertained as per the tender notice. It was also clarified in the tender notice that in absence of any documents, as enumerated in clause-1 to 14, the application submitted by the bidder would not be taken into consideration. Therefore, fully knowing the conditions stipulated in the tender notice, the petitioner should not have filed this writ petition claiming consideration of his bid on the ground that he had quoted higher price than opposite party no.5. If the bid submitted by the petitioner was absolutely void ab initio, in view of non-compliance of the tender conditions stipulated in the tender notice, he is estopped from claiming the benefit, as has been claimed in this writ petition. Therefore, at his behest, the writ petition cannot be sustained in the eye of law. 9. Much argument was advanced by Mr. P.K. Rath, learned counsel appearing for the petitioner that the petitioner s application was incorporated by the letter issued by the bank, which has been placed at page-75 of the brief. But on perusal of the said letter it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrected as Rs.565/-, as is evident from pages 117, 119 and 121 of the writ petition. Therefore, the amount mentioned as the additional charge, i.e., Rs.150/- was not taken into consideration and Rs.565/- quoted as the additional charge by opposite party no.5 was accepted and he was considered as the highest bidder after rejecting the bid of the petitioner. As such, it was not disputed by the petitioner to come to a conclusion that any interpolation or fraud was committed by opposite party no.5, rather in each correction, opposite party no.5 has put his signature, which justifies that opposite party no.5 himself had quoted Rs.565/- as additional charge. Therefore, the petitioner has no right to make an allegation now that there was manipulation in the bid documents submitted by opposite party no.5. 12. Learned counsel appearing for the petitioner has placed reliance on Swapna Behera (supra), wherein the petitioner had quoted price of Rs.1108, whereas opposite party no.4 quoted Rs.275/- and, as such, the petitioner therein had approached this Court challenging rejection of his bid. Since there was gross difference between the offer quoted by the petitioner, i.e. Rs.1108/- and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ental Bank of Commerce (supra), the apex Court referring to Bihar Eastern Gangetic Fishermen Coop. Society Ltd (supra), in paragraph-12 of the judgment came to a conclusion that in order that a writ of mandamus may be issued, there must be a legal right with the party asking for the writ to compel the performance of some statutory duty cast upon the authorities. 16. In Vidarbha Irrigation Development Corporation and others v. Anoj Kumar Agarwala and others, (2020) 17 SCC 577, the apex Court held that the tender documents cannot be ignored or treated as redundant or superfluous and they must be given meaning and their necessary significance. Given the fact that in the present case, an essential tender condition, which had to be strictly complied with, was not so complied with, the appellant would have no power to condone lack of such strict compliance. Any such condonation, as has been done in the present case, would amount to perversity in the understanding or appreciation of the terms of the tender conditions, which must be interfered with by a constitutional court. The same view has also been taken by the this Court in M/s. Kamala Agencies v. State of Odisha, 2022 (III) ILR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitors in the trade to give their offer in respect of the work in question, one not knowing the offer of the other so that the competent authority will take a final decision with regard to the acceptance of any one of them. In this view of the matter, to consider the offer of a tenderer who did not give the offer of a tenderer who did not give the offer of a tenderer who did not give the offer within the time on the ground that the said offer is lower than the rate accepted by the competent authority would obviously frustrate the sanctity and object of the tender call system . 20. In Sorath Builders (supra), the apex Court in paragraph-27 of the judgment held as follows: 27. Following the aforesaid legal Principles laid down by this Court, we are of the considered opinion that Respondent 1 was negligent and was not sincere in submitting his pre-qualification documents within the time schedule laid down despite the fact that he had information that there is a time schedule attached to the notice inviting tenders. Despite being aware of the said stipulation he did not submit the required documents within the stipulated date. Prequalification documents were received by Respond ..... X X X X Extracts X X X X X X X X Extracts X X X X
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