JUDGMENT
A. Pasayat, J.
1. Refusal to issue tender papers for submission to tender in respect of Tender Call Notice for undertaking the works of widening to 4 lanes of the existing two lanes of NH-5 from Km. 412.5 to 418.00 Km. of Visakhapatnam-Bhubaneswar Section (Job. No. 005-OR-96-131) under N. H. Division, Bhubaneswar, and widening to two lanes from Km. 201-29 to 20o-60 Km. of Cuttack – Sambalpur Section of N. H. 42 (Job No. 042-OR-96-132) under N. H. Division, Sambalpur has brought petitioner before this Court.
2. The factual position as presented by the parties essentially is as follows :
A Tender Call Notice dated 2-7-1996 was published in various newspapers inviting tenders which were to be submitted in the office of the Chief Engineer, National Highway, Orissa. It was published in “The Samaj” on 23-7-1995. It inter alia stipulated that eligible registered super class/special class contractors only of Orissa State PWD/ CPWD/ MES and other State eligible contractors possessing requisite numbers of road making machineries of their own were eligible to offer tender. There were other stipulations which are not relevant for the present dispute. It was indicated that the tender papers shall be sold in the office of the Chief Engineer. National Highway, Orissa, Sachivalaya Marg, Bhubaneswar-751001 during office hourse on working days up to 12-9-1996, as per rules in vogue, and certificate from an Executive Engineer of National Highway Organisation regarding owning of such machineries indicating therein location, specification and performance was required to be submitted. There was a subsequent tender call notice and the road making machineries were specified. Dispute in the present writ petition revolves round the second tender call notice, and the relevant stipulation reads as follows:
“Sealed tenders in double cover system are invited in the prescribed form to be eventually drawn up in the PWD F-2 forms as per tender schedule in confirmity with DTCN for the following works from the eligible registered Super Class/ Special Class contractors of Orissa
State PWD and others State eligible contractors possessing requisite numbers of road making machineries like Big Hot Mix Plant, Hydraulic Paver Finisher with electronic Sensor device. Tar boiler, Bitumen sprayers, vibratory Road Rollers, Power Road Rollers Tippers and P. E. Loader etc. of M. 0. S. T. specification of their own.
xxx (8) Tender papers shall be issued on production of valid ITCC, STCC, Original Registration Certificate, Work experience as stipulated above and certificate from an Executive Engineer of N. H. Organisation regarding owning of such machineries indicating therein location, specification and performance. (9) Cover I should contain the details of machineries in possession of the tender. Experience in completing road work during five years time, name, value of works in hand, Xerox copies of STCC, ITCC, Registration Certificate and E. M. D., D. T. C. N. and special condition, if any.”
Petitioner applied for tender papers which were notissed on the ground that he did not possess one of the requisite road making machineries, i. e. Hydraulic Paver Finisher with electronic Sensor device.
3. Petitioner’s ground of challenge is that he possessed Hydraulic Paver Finisher with electronic Sensor device with minor component thereof. He placed orders with Gujarat Appolo Equipments Limited, the only supplier of such equipments and on an erroneous impression that the petitioner did not possess the equipment, refusal has been made. Discrimination has been made as some of the other parties who were issued tender papers did not possess requisite machineries, and requisite documents were not submitted. Stand of the State and its functionaries is that an enquiry was conducted from Gujarat Appolo Equipments Limited, which clearly denied to have received any order from the petitioner. By way of reply it Is submitted by the learned counsel for petitioner that money was deposited with the registered office and Works at Mehsans, and the enquiry was conducted from Ahmedabad office. It is also submitted that possession of Hydraulic Paver Finisher with electronic Sensor device is not a must, because condition was possession of road making machineries like the above one. He undisputedly possessed a Hydraulic Paver Finisher without Sensor device. The absence of this did not in any way affect utility of the machinery, and it was an unimportant component. It is urged that the object of a tender is’ to afford opportunity of participation and on such narrow technical ground, restraint should not be put on purchase of tender papers. Petitioner should be issued tender papers and should be allowed to participate in the tender so that competive prices can be offered to be considered by the tendering authorities. Learned counsel for State submitted that even if it is accepted that the petitioner has placed orders which assertion is also in dispute, that cannot mean that he was in possession of the machinery in question. Further, all other applicants to whom tender papers have been supplied had fulfilled the conditions. According to him. no mala fides are involved, and this being a contractual matter interference is not called for. It is urged that when tender call notice dated 3-7-1996 was published, it was done in an abridged manner lacking relevant details, and therefore, fresh notice was published with requisite details. This proves the bona fide involved.
4. The word “like” as defined in Webster’s Dictionary means “equal in quantity, quality, or degree, exactly corresponding”; so that “in like manner” means “with same force and effect”. While the context often determines its signification the term is generally defined to mean “analogous; resembling; having resemblance similar; equal; same in quantity, amount, or extent, having the same, or nearly the same, appearance, qualities, or characteristics; resembling; similar, to, equal in quantity, quality,, or degree; exactly corresponding”. In the aforesaid premises, the plea that there cannot be insistence on possession of the specified machinery, and without electronic sensor device, condition is fulfilled is without substance,
5. The next question is whether petitioner was in possession of the machinery having placed orders for it. According to etymology the word possess” means to” sit upon: hence to occupy in person, to have and to hold. Thus the first lexical meaning given to the words in the Century Dictionary is “to own; have as property”. The second definition in Webster’s Dictionary is ‘to have legal title to.” In popular usage the word “possess” includes real and personal property to which one has title as his landed possessions. So in scripture it is indicated, “The House of Jacob shall possess their possessions”. The Segal idea of possession, though varying according to circumstances, still embraces the conception of right as well as that of physical control. The word ‘possess’ is frequently used in the sense of “own”, “entitled to”. Possession is a detention or enjoyment of a thing which a man holds or exercises by himself or by another, who keeps or exercises it in his name. Possession is said to be in two ways either actual possession or possession in law. “Actual possession” is when a man enters into land or tenements to him descended, or otherwise. “Possession in law” is when lands or tenements are descended to a man, and he has not as yet really, actually and in deed entered into them. And it is called possession in law because that in the eye and consideration of the law, he is deemed to be in possession, inasmuch as he is liable to every man’s action that will sue concerning the same lands or tenements. The term has been defined as follows : “Simply the owning or having a thing in one’s power; the present right and power to control a thing; the detention and control of the manual or ideal custody of anything which may be the subject of property, for one’s use of enjoyment, either as owner or as the proprietor of a qualified right in it, and either hold personally or by another who exercises it in one’s place and name; the detention or enjoyment of a thing which a man holds or exercises by himself or by another who keeps or exercises it in his name, the act of possessing, having and holding or retaining or property in one’s pawer or control; the sole control of the property or of some physical attachment to it that condition of fact under which one can exercise his power over a corporeal thing at his pleasure, to the exclusion of all other persons.
6. When a person is in such a relation to a thing that so far as regards the thing, he can assume, exercise or resume manual control of it at pleasure, and so far as regards other person, the thing is under the protection of his personal presence, or in or on a house or land occupied by him or in any receptacle belonging to him, and under his control, he is in physical possession of the thing. “Possession” is a polymorphous term which may have different meanings in different contexts. It is impossible to work out a completely logical and precise definition to be uniformly applicale to all situations in the contexts of all statutes. Dias and Hughs in their book of Jurisprudence say that if a topic ever suffered from too much theorizing, it is that of possession. Much of this difficulty and confusion is (as pointed out in Salmond’s Jurisprudence, 12th Edition, 1966) caused by the fact that possession is not purely a legal concept. Possession implies a right and a fact-the right to enjoy annexed to the right of property and the fact of real intention. It involves power of control and intent to control. According to Pollock and Wright, “when a person is in such a relation to a thing that so far as regards the thing, he can assume, exercise or resume manual control of it at pleasure, and so far as regards other persons, the thing is under the protection of his personal presence, or in or on a house or land occupied by him, or in any receptacle belonging to him and under his control, he is in physical possession of the thing. While recognizing that possession is not a purely legal concept but also a matter of fact, Salmond describes possession in fact as a relationship between a person and a thing. According to him the test for determining “whether a person is in possession of anything is whether he is in general control of it. In the aforesaid premises, the conclusion is inevitable that mere placement of orders does not constitute possession.
7. It is submitted by the learned counsel for petitioner that the petitioner shall purchase the machinery before the tender papers arc opened, and there is no reason why the tender papers should not be issued to him because of this undertaking. We find no substance in this plea because issuance of tender papers was hedged with the condition about possession of requisite machineries. That being the position the plea that the petitioner can produce the machineries at the time of consideration of tender papers is of no consequence. As indicated above, it is alleged that the persons to whom the tender papers have been issued do not. possess the requisite machineries, and did not submit requisite documents. We find from records that though originally tender papers were issued to opposite parties 3 and 6, they were subsequently informed that it was done wrongly. Certainly persons who do not possess the requisite machineries, and/or did not. submit requisite documents cannot be considered, and their bids are not to be entertained, even if tender papers have been issued to them. This shall be ensured when the tenders are opened.
8. It is urged that from Annexure B/1 it appears that Hydraulic Paver Finisher with electronic sensor device was delivered ex-works to opposite parties 5, 4 and 7 on 26-9-1996, 27-9-1996 and 10-10-1996 respectively. These machineries take at least ten days to reach any part in Orissa and therefore, certificates issued about their locations in Orissa cannot be genuine. This needs a factual adjudication. The opposite parties 1 and 2 are directed to examine and ascertain the factual position with reference to materials, more particularly documents as regards transportation etc. For this purpose, if necessary, the concerned opposite parties shall be required to substantiate their claim of possession, and location of machineries. It is also urged by the petitioner that no certificate regarding possession and location of machineries issued by an Executive Engineer of N. H. Organisation was submitted by opposite party No. 8. This aspect shall be examined by opposite party Nos. 1 and 2, and a finding shall be recorded.
The writ application is dismissed with aforesaid observations. No cost.
S.N. Phukan, C. J.
9. I agree.