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TMI Blog2023 (6) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... angadihi Stone Quarry for a period of five years, i.e., from the financial year 202-23 to 2026-27. The last date of submission of bid was fixed to 04.08.2022 and the date of opening of bid was fixed to 05.08.2022. The auction notice also specified the list of documents to be enclosed by the bidders along with the bid application. Duly complying with the conditions of the auction notice, the petitioner submitted its bid incorporating the documents as required. The tender drop box was opened, on 05.08.2022 at 11.30 A.M., by the selection committee, comprising of Tahasildar, Banspal, Addl. Tahasildar, Banspal and Revenue Inspector. Five sealed envelopes were found to be submitted by Dileswar Behera, Anil Khirwal, Soumyajit Mohanty, M/s P.K. Minerals (P) Ltd. (petitioner herein) and M/s Sri Venkateswar Construction. On scrutiny of the documents, it was found that bids of Dileswar Behera, Anil Khirwal, Soumyajit Mohanty were not accompanied with required documents. 2.1 The tender notice contained a mandate that the incomplete applications will not be taken into consideration and those will be rejected, and that the bid applications will be scrutinized in presence of the bidders or thei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t it was not a statutory certificate and the same was issued before his submission of income tax return of financial year 2021-2022 and, as such, the same was issued on the request made by the assessee, as a conditional and not absolute. As such, the GST authorities had made it clear that the certificate is not valid in case of any liability arises for the said period and at the time of scrutiny of the details. Meaning thereby, the authority reserved the right to cancel and declare the certificate to be invalid. 2.4 The petitioner raised objection to the effect that the bid application of opposite party no. 4 is incomplete and, therefore, the same is liable to be rejected. But the selection committee, instead of rejecting the bid of opposite party no. 4, deferred the selection of the bid and decided to seek clarification from the concerned Department of the Government as to the validity of the income tax return submitted by opposite party no. 4 for the assessment year 2021-22. As such, the bid submitted by opposite party no. 4 should have been rejected as per sl.no. 5 of the check list, which was not complied with, as the GST no dues certificate submitted by opposite party no. 4 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of power under judicial review, this Court can interfere with the same and pass appropriate order in accordance with law. 3.2 To substantiate his contention, learned counsel appearing for the petitioner has relied upon the judgments of the apex Court as well this Court in the cases of Vidarbha Irrigation Development Corporation and others v. Anoj Kumar Agarwala, (2020) 17 SCC 577; Sachin Kumar Agrawal v. State of Odisha [W.P.(C) No. 31112 of 2022 disposed of on 03.04.2023]; and Rahul Mishra v. Collector, Bolangir, 114 (2012) CLT 97. 4. Mr. P.P. Mohanty, learned Addl. Government Advocate appearing for the State-opposite parties contended that pursuant to the auction notice dated 18.07.2022, the tender box was opened on 05.08.2022, wherein five bidders, including the petitioner, were found to have participated in the bid. After scrutiny, it was found that the bids of Dileswar Behera, Anil Khirwal and Soumyajit Mohanty were rejected due to insufficient documents, whereas the petitioner had quoted a sum of Rs. 271/- as additional charge and opposite party no. 4 had quoted a sum of Rs. 589/-. As opposite party no. 4 had quoted highest bid of Rs. 589/- as additional charge, it was s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner with a low price does not arise, and that the same would be improper on the part of the authority. As a consequence thereof, dismissal of the writ petition is sought for. 6. This Court heard Mr. S.K. Dash, learned counsel for the petitioner; Mr. P.P. Mohanty, learned Addl. Government Advocate appearing for the State opposite parties no.1 to 3; and Mr. U.C. Beura, learned counsel appearing for opposite party no. 4 in hybrid mode and perused the record. Pleadings having been exchanged between the parties, with the consent of learned counsel for the parties this writ petition is being disposed of finally at the stage of admission. 7. On the basis of the factual matrix, as delineated above, before delving into the merits of the case itself, Clause-(iv) of Rule-27(4) of the Odisha Minor Minerals Concession (Amendment) Rules, 2022, which is relevant for the just and proper adjudication of the case, is taken note of:- "R-27(4)(iv). Income tax return of previous financial year showing annual income for an amount not less than the amount of additional charge offered and the royalty payable for the minimum guaranteed quantity for one whole year or bank guarantee valid for a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... objected to the bid submitted by opposite party no. 4, but, without considering the same, the authorities proceeded with the decision making process of selection and allotment of the quarry. On the basis of the materials, which have been placed by the petitioner at page 182-183 of the writ petition as Annexure-5, on receipt of the same under the Right to Information Act, 2005, it would be evident that in the comparative statement prepared on opening of the bids on 05.08.2022, which were received pursuant to the auction notice issued vide Advertisement No. 1895 dated 18.07.2022 with regard to Karangadihi Stone Quarry, the competent authority has made endorsement to the following effect:- Sl. No. Name & Address of the Participant with Mobile No. Form 'M' (triplicate) Treasury Challan @ Rs. 1000/- Affidavit EMD IT return of Previous financial year or Bank Guarantee GST Registration Certificate Certificate of No dues from GST Jurisdiction Officer Land Plan and Land Schedule PAN Card & Other ID Card Documents on available machinery and transportation Agreed to lift materials (in Cum) Charge Quoted by Applicant (per Cum.) Date & Contact No. (Accepted /Rejected) (1) (2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority, as was observed, the authority could not have proceeded with the matter and finalize the tender in favour of opposite party no. 4 on the very same day, i.e., 05.08.2022. Thereby, the entire decision making process of the tendering authority is arbitrary, unreasonable and contrary to the provisions of law. Under these circumstances, this Court, in exercise of the powers conferred under the judicial review, has got jurisdiction to interfere with the decision making process of the tendering authority. 11. In Sterling Computers Ltd. v. M & N Publications Ltd. (1993) 1 SCC 445, the apex Court observed as under:- "18. While exercising the power of judicial review, in respect of contracts entered into on behalf of the State, the court is concerned primarily as to whether there has been any infirmity in the 'decision-making process'. ... the courts can certainly examine whether 'decision-making process' was reasonable, rational, not arbitrary and violative of Article 14 of the Constitution." 12. In Tata Cellular v. Union of India, (1994) 6 SCC 651 : AIR 1996 SC 11, the apex Court, referring to the limitations relating to the scope of judicial review of administrative decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecifications; (3) whether the person tendering has the ability to deliver the goods or services as per specifications. When large works contracts involving engagement of substantial manpower or requiring specific skills are to be offered, the financial ability of the tenderer to fulfil the requirements of the job is also important; (4) the ability of the tenderer to deliver goods or services or to do the work of the requisite standard and quality; (5) past experience of the tenderer, and whether he has successfully completed similar work earlier; (6) time which will be taken to deliver the goods or services; and often (7) the ability of the tenderer to take follow-up action, rectify defects or to give post-contract services. Even when the State or a public body enters into a commercial transaction, considerations which would prevail in its decision to award the contract to a given party would be the same. However, because the State or a public body or an agency of the State enters into such a contract, there could be, in a given case, an element of public law or public interest involved even in such a commercial transaction. 10. What are these elements of publi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision considerations which are paramount are commercial considerations. The State can choose its own method to arrive at a decision. It can fix its own terms of invitation to tender and that is not open to judicial scrutiny. It can enter into negotiations before finally deciding to accept one of the offers made to it. Price need not always be the sole criterion for awarding a contract. It is free to grant any relaxation, for bona fide reasons, if the tender conditions permit such a relaxation. It may not accept the offer even though it happens to be the highest or the lowest. But the State, its corporations, instrumentalities and agencies are bound to adhere to the norms, standards and procedures laid down by them and cannot depart from them arbitrarily. Though that decision is not amenable to judicial review, the court can examine the decision-making process and interfere if it is found vitiated by mala fides, unreasonableness and arbitrariness. The State, its corporations, instrumentalities and agencies have the public duty to be fai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 8 SCC 216 and Maa Binda Express Carrier v. North East Frontier Railway, (2014) 3 SCC 760. 17. In Vidarbha Irrigation Development Corporation and others (supra), the apex Court, in paragraph-16 of the judgment, held as under:- "16. It is clear even on a reading of this judgment that the words used in the tender document cannot be ignored or treated as redundant or superfluous 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." Since in the instant case opposite party no. 4 has not complied with the conditions, as stipulated in the auction notice, and the committee has decided to make a verification and confirmation from the concerned authorities, instead of doing so, the same could not have been settled in favour of opposite party no. 4. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion does not arise, in view of the fact that the document, which had been submitted by the petitioner with regard to no dues certificate from GST authority, is also required to be verified by the concerned department/ authority, if necessary. Thereby, this Court is of the considered view that even if the petitioner is called upon to match the highest price, but its bid will suffer from deficiency like that of opposite party no. 4. Therefore, the question of calling upon the petitioner to match the highest price offered by opposite party no. 4 may not arise. 21. In view of the aforesaid facts and law, as discussed above, it is made clear that the decision making process in selecting opposite party no. 4, being arbitrary, unreasonable and contrary to the provision of law, cannot be sustained in the eye of law. Consequentially, the order dated 05.08.2022 so passed by the Tahasildar, Banspal settling the source in favour of opposite party no. 4 and confirmation thereof made by the Sub-Collector, Keonjhar by order dated 20.10.2022 passed in O.M.C.C. Appeal No. 33 of 2022 are liable to be quashed and are hereby quashed. The opposite party-authorities are directed to go for fresh tender ..... X X X X Extracts X X X X X X X X Extracts X X X X
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