{"id":226324,"date":"2010-08-20T00:00:00","date_gmt":"2010-08-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/l-mohapatra-vs-vrs-on-20-august-2010"},"modified":"2017-03-26T13:18:14","modified_gmt":"2017-03-26T07:48:14","slug":"l-mohapatra-vs-vrs-on-20-august-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/l-mohapatra-vs-vrs-on-20-august-2010","title":{"rendered":"L.Mohapatra vs Vrs on 20 August, 2010"},"content":{"rendered":"
Orissa High Court<\/div>\n
L.Mohapatra vs Vrs on 20 August, 2010<\/div>\n
                                    L.MOHAPATRA, J.\n<\/pre>\n
                  W.P.(C) NO.12509 OF 2010 (Decided on 20.08.2010)
\nUMESH KUMAR PODDAR                                …………             Petitioner.\n<\/p>\n
                                   .Vrs.\n<\/p>\n
STATE OF ORISSA & ORS.                          ………….            Opp.Parties.\n<\/p>\n
CONSTITUTION OF INDIA, 1950 – ART.226.\n<\/p>\n
  For Petitioner – M\/s. H.M.Dhal, & P.P.Mohanty.\n<\/p>\n
  For Opp.Parties – Mr. J.Pattnaik (for O.P.No.1)
\n                    M\/s.Milan Kanungo, s.K.Mishra, Y.Mohanty & S.N.Das
\n                    (for O.P.Nos.2 & 3)
\n                    M\/s. S.K.Padhi & B.R.Behera (for O.P.No.4).\n<\/p>\n
L.MOHAPATRA, J. The facts leading to filing of this writ petition are as follows:\n<\/p>\n
         Opposite party No.2-Orissa Bridge & Construction Corporation Limited issued a
\nnotice on 1.6.2010 inviting sealed bids for different toll gates and this case is confined to
\nthe IIIrd Toll Gate on Sambalpur-Rourkela ADB Road, Sundergarh. The Bid Invitation
\nNotice clearly indicates that sealed bids from intending bidders for collection of Toll for a
\nperiod of one year were invited and the sale of bid document started from 7.6.2010. The
\nlast date for receipt of the sealed bid was 7.7.2010 up to 5 P.M. during working days
\nwithin office hours at Head office and Senior Project Managers’ Offices. In pursuance of
\nthe aforesaid notice inviting sealed bids, petitioner and opposite party No.4 submitted
\ntheir respective bids. Both the petitioner and opposite party No.4 submitted their
\nrespective bids on 7.7.2010. Case of the petitioner is that he had offered a bid amount
\nof Rs.6,40,57,500\/- but submitted a revised bid on same day to the tune of
\nRs.6,95,57,500\/-. Opposite party No.4 had submitted a bid of Rs.6,91,00,000\/-.
\nOpposite party No.4 having been called for negotiation, the petitioner submitted a
\nrepresentation to the opposite party Nos.2 and 3 stating therein that he being the
\nhighest bidder, the agreement should have been executed with him and that the
\nopposite party No.4 the second highest bidder having been called for negotiation, he
\nshould have been also called for negotiation.\n<\/p>\n
2. Opposite party Nos.2, 3 and 4 have filed counter affidavit separately taking more or
\nless similar stand. According to the said opposite parties, the tender conditions clearly
\nstipulate that once a bid is submitted in sealed cover, it cannot be modified or altered on
\nany ground. The petitioner initially having submitted a bid for an amount of
\nRs.6,40,47,500\/-, there was no scope to revise the same even if it is accepted that the
\nrevised bid had been submitted on 7.7.2010. The question as to whether the revised bid
\nsubmitted by the petitioner was on 7.7.2010 or the same had been inserted to the
\nrecord after 7.7.2010 was also in dispute. It is also the case of the opposite parties that
\nafter opening of the sealed bids, when it was found that opposite party No.4 is the
\nhighest bidder, as per practice he was called for negotiation to raise the bid amount.\n<\/p>\n
                                              2<\/span><\/p>\n
3.     The writ petition was heard by a Division Bench and there being difference of
\nopinion only on the issue as to whether the petitioner has any right to be called for
\nnegotiation because opposite party No.4, the highest bidder had been called by the
\nopposite party Nos.2 and 3 for upward revision of price, this matter has been placed
\nbefore me and the learned counsel appearing for the parties made submissions only on
\nthis issue.\n<\/p>\n
4. Shri H.M. Dhal, the learned counsel appearing for the petitioner submitted that the
\nsanctity of a sealed tender\/bid is required to be maintained by the Corporation. In terms
\nof the condition of bid as reflected in the notice, after receipt of the bids, the same
\nshould have been opened and whoever is the highest bidder, the agreement should
\nhave been executed with him. There being no provision in the bid notice for inviting the
\nhighest bidder for negotiation to raise the price quoted by him, such a procedure could
\nnot have been adopted by the Corporation. Once the Corporation adopted such method,
\nit obviously means that the process of sealed bid was abandoned by the Corporation
\nand a decision had been taken to settle the contract on negotiation. Therefore, the
\npetitioner should have also been given an opportunity to raise his price quoted in the
\nsealed bid. Shri S.K. Padhi, the learned Senior Counsel appearing for opposite party
\nNo.4 and Shri Milan Kanungo, the learned counsel appearing for the Corporation
\nsubmitted that the practice adopted by the Corporation is to call the highest bidder for
\nan upward revision and that does not give any right to any other bidder to claim for
\nnegotiation. This practice adopted by the Corporation does not necessarily mean that
\nthe sealed bid process was abandoned and the parties were required to be called for
\nnegotiation for the purpose of awarding the contract.\n<\/p>\n
5.      From the judgments delivered by both the Hon’ble Judges, it appears that the
\nrevised offer alleged to have been submitted by the petitioner on 7.7.2010 is not correct
\nand manipulations were made in the “Register of Letter Received” to show that the
\nrevised offer had been received on 7.7.2010 though actually it had been submitted on
\n8.7.2010, i.e., the date on which the bids were opened. There is no difference of opinion
\non this issue.\n<\/p>\n
        Hon’ble Justice B.P. Das held that opposite party No.4 even after being declared
\nas highest bidder was called for negotiation by the Corporation for upward revision of
\nprice and therefore, the petitioner was also required to be called for negotiation. Hon’ble
\nJustice B.N. Mahapatra was of the view that the petitioner never built a case alleging
\nthat he had a right to be called for negotiation as opposite party No.4 had been called by
\nthe Corporation for negotiation and on the other hand in the writ petition he claimed to
\nbe the highest bidder on the basis of the revised bid and therefore, in absence of any
\npleading, no such submission could be advanced. It was also held while differing with
\nHon’ble Justice B.P. Das that the petitioner had not come to Court in clean hands and
\ntherefore, he is not entitled to any equity, and merely because the highest bidder
\nopposite party No.4 was called for negotiation to raise the bid price, that itself does not
\ncreate any right in favour of the petitioner to claim that he had a right to be called for a
\nnegotiation.\n<\/p>\n
6.    Shri H.M. Dhal, the learned counsel appearing for the petitioner submitted that
\neven accepting the case of the Corporation and opposite party No.4 that the petitioner
\nhad no right to revise his bid, it was open for the Corporation to settle the contract in
\n                                              3<\/span><\/p>\n
favour of opposite party No.4, his bid being higher than that of the petitioner. Without
\nsettling the contract in favour of opposite party No.4, the Corporation called opposite
\nparty No.4 for negotiation in order to raise the bid price quoted by him which he refused
\nto do. According to Shri Dhal, the learned counsel appearing for the petitioner, the
\nCorporation being desirous of getting better offer called opposite party No.4 for
\nnegotiation, otherwise they could have settled the contract with him for the bid amount
\nquoted by the said opposite party. Once the opposite party No.4 was called for
\nnegotiation, the entire bid process is deemed to have been abandoned and therefore, all
\nthe parties who had participated in the bid process should have been called for
\nnegotiation.\n<\/p>\n
          Shri S.K. Padhi, the learned Senior Counsel appearing for opposite party No.4
\nand Shri Milan Kanungo, the learned counsel appearing for the Corporation submitted
\nthat opposite party No.4 being the highest bidder, a decision was taken to award the
\ncontract in his favour. However, before execution of agreement, as per practice adopted
\nby the Corporation, opposite party No.4 was called for negotiation in order to raise the
\nbid amount. This act itself does not create any right in favour of the petitioner to claim
\nthat he should have been also called for negotiation, once the highest bidder rejected
\nthe request for enhancing the bid amount. This was the practice adopted by the
\nCorporation in respect of all contract awarded by it and this case is not an isolated one.
\nIt was also contended by the learned counsel for the said opposite parties that merely
\nbecause the opposite party No.4 being the highest bidder was called for negotiation by
\nitself does not give any right to the petitioner to claim for negotiation. Shri S.K. Padhi,
\nthe learned Senior Counsel drew attention of the Court to the CVC Guidelines and
\nsubmitted that though the CVC Guidelines are not applicable to the present case, it
\nclearly stipulates that only the lowest tenderer should be called for negotiation.\n<\/p>\n
7. In order to appreciate the rival contentions of the learned counsel appearing for the
\nparties, it is necessary to take note of certain dates and the provisions contained in the
\nbid notice.\n<\/p>\n
7.7.2010       Last date for submission of sealed bid.\n\n7.7.2010       Petitioner and opposite party No.4 submitted their respective        sealed\nbids.\n\n7.7.2010       Petitioner alleges to have submitted a revised bid.\n\n8.7.2010        Bids were opened and it was found that the offer of the petitioner was\nRs.6,40,57,500\/- where as the offer of       opposite party No.4 was Rs.6,91,00,000\/-.\nThe offer of the       third bidder Shri Ganesh Ram Agarwal was Rs.6,23,00,301.00.\n\n16.7.2010       Opposite party No.1 was called for negotiation for upward revision of the\nrate quoted by him in the sealed bid.         Opposite party No.4 appeared before the\nCorporation officers, participated in the process of negotiation and      declined      to\nrevise his offer.\n\n22.7.2010      Opposite party No.4 was intimated that his bid was accepted and he was\nrequired to approach the Corporation        for execution of agreement.\n                                              4<\/span>\n\n\n\n23.7.2010     The agreement between the Corporation and opposite party             No.4\nwas executed.\n\n<\/pre>\n
          So far as the terms and conditions of the bid notice are concerned, clause 16
\nthereof provides that any request found along with the bid document or afterwards
\nregarding modification\/ alternation, if any, will not be considered on any ground. In view
\nof this clause, even if we accept the contention of the learned counsel for the petitioner
\nthat the revised bid had been submitted by the petitioner on 7.7.2010, the same could
\nnot have been accepted by the Corporation. Therefore, undisputedly the petitioner
\nhaving quoted an amount lower than that of opposite party No.4, the said opposite party
\nNo.4 was declared to be the highest bidder.\n<\/p>\n
       Clause-31 of the bid notice provides that the authority reserves the right to reject
\nany or all the bids without assigning any reason thereof. Much reliance has been placed
\nby the learned counsel for the petitioner on this clause in order to substantiate his
\ncontention that merely because opposite party No.4 was the highest bidder, no right
\naccrued in his favour and the Corporation reserved the right to reject even the highest
\nbid.\n<\/p>\n
       Admittedly there is no provision in the bid notice to invite the highest bidder for
\nupward revision of the price quoted by him.\n<\/p>\n
       Admittedly after opposite party No.4 was found to be the highest bidder by letter
\ndated 16.7.2010, the Managing Director of the Corporation intimated opposite party
\nNo.4 to attend his office on or before 23.7.2010 for upward negotiation of the rate
\nquoted by him. The contents of the letter is quoted below:\n<\/p>\n
               “With reference to your bid on dtd.08.07.2010 for the above toll gate, you
\n       are hereby requested to attend this office on or before dtd.23.07.2010 positively
\n       for upward negotiation of the rate quoted by you in the above bid of the toll gate.
\n       This may be noted that this negotiation letter does not confer any right for award
\n       of this work.”\n<\/p><\/blockquote>\n
           As is evident from the above, in absence of any provision in the bid notice,
\nopposite party No.4 was called for negotiation and it is clear from the letter dated
\n16.7.2010 that till that day no final decision had been taken to settle the contract in
\nfavour of opposite party No.4. Now the question that raises for consideration is when the
\ncontract had not been settled in favour of any one as on 16.7.2010 and a notice was
\nsent to opposite party No.4 being the highest bidder for upward revision of the rate
\nquoted by him, whether the entire tender process was abandoned and the process of
\nnegotiation was taken up by the Corporation or as a matter of practice, the Corporation
\ninvited opposite party No.4 for negotiation.\n<\/p><\/blockquote>\n
8.      In this connection some judgments cited by the learned counsel for the parties
\nare required to be referred to.\n<\/p>\n
        The learned counsel for the petitioner placed reliance on a decision of the apex
\nCourt in the case of Food Corporation of India v. M\/s. Kamdhenu Cattle Feed
\nIndustries,<\/a> reported in (1993) 1 Supreme Court Cases 71. In the said case Food
\n                                               5<\/span><\/p>\n
Corporation of India who was the appellant before the apex Court invited tenders in
\nrelation to stocks of damaged food grains. The bid given by respondent-tenderer was
\nthe highest. The Corporation not being satisfied about the adequacy of the amount
\noffered in the highest tender, instead of accepting any tender, invited all the tenderers to
\nparticipate in the negotiation. The respondent refused to revise the rate offered in its
\ntender. In the negotiation, the appellant was offered an excess amount of Rs.20 lakhs.
\nThe respondent carried the matter to the High Court by way of filing a writ petition
\nchallenging the action of the Corporation in refusing to accept the highest tender
\nsubmitted by it on several grounds. The action of the Corporation was alleged to be
\narbitrary and therefore in substance violative of Article 14. The High Court accepted this
\ncontention of the respondent and allowed the writ petition. Before Hon’ble Supreme
\nCourt it was contended by the respondent that even though the appellant-Corporation
\nhad the right to reject any tender including the highest tender and thereafter negotiate
\nwith all the tenderers to procure the highest price, yet this right has to be exercised
\nreasonably and not arbitrarily. The apex Court did not accept such contention raised by
\nthe respondent and allowed the appeal with certain observations which are necessary to
\nbe quoted:\n<\/p>\n
                 ” In contractual sphere as in all other State actions, the State and all its
\n        instrumentalities have to conform to Article 14 of the Constitution of which non-
\n        arbitrariness is a significant facet. There is no unfettered discretion in public law:
\n        A public authority possesses powers only to use them for public good. This
\n        imposes the duty to act fairly and to adopt a procedure which is ‘fairplay in
\n        action’. Due observance of this obligation as a part of good administration raises
\n        a reasonable or legitimate expectation in every citizen to be treated fairly in his
\n        interaction with the State and its instrumentalities, with this element forming a
\n        necessary component of the decision-making process in all State actions. To
\n        satisfy this requirement of non-arbitrariness in a State action, it is, therefore,
\n        necessary to consider and give due weight to the reasonable or legitimate
\n        expectations of the persons likely to be affected by the decision or else that
\n        unfairness in the exercise of the power may amount to an abuse or excess of
\n        power apart from affecting the bona fides of the decision in a given case. The
\n        decision so made would be exposed to challenge on the ground of arbitrariness.
\n        Rule of law does not completely eliminate discretion in the exercise of power, as
\n        it is unrealistic, but provides for control of its exercise by judicial review.\n<\/p><\/blockquote>\n
                The mere reasonable or legitimate expectation of a citizen, in such a
\n       situation, may not be itself be a distinct enforceable right, but failure to consider
\n       and give due weight to it may render the decision arbitrary, and this is how the
\n       requirement of due consideration of a legitimate expectation forms part of the
\n       principle of non-arbitrariness, a necessary concomitant of the rule of law. Every
\n       legitimate expectation is a relevant factor requiring due consideration in a fair
\n       decision-making process. Whether the expectation of the claimant is reasonable
\n       or legitimate in the context is a question of fact in each case. Whenever the
\n       question      arises, it is to be determined not according to the claimant’s
\n       perception but in larger public interest wherein other more important
\n       considerations may outweigh what would otherwise have been the legitimate
\n       expectation of the claimant. A bona fide decision of the public authority reached
\n       in this manner would satisfy the requirement of non-arbitrariness and withstand
\n                                              6<\/span><\/p>\n
       judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the
\n       rule of law and operates in our legal system in this manner and to this extent.\n<\/p><\/blockquote>\n
                      xxx                    xxx                     xxx<\/p>\n
               From the above, it is clear that even though the highest tenderer can
\n       claim no right to have his tender accepted, there being a power while inviting
\n       tenders to reject all the tenders, yet the power to reject all the tenders cannot be
\n       exercised arbitrarily and must depend for its validity on the existence of cogent
\n       reasons for such action. The object of inviting tenders for disposal of a
\n       commodity is to procure the highest price while giving equal opportunity to all the
\n       intending bidders to compete. Procuring the highest price for the commodity is
\n       undoubtedly in public interest since the amount so collected goes to the public
\n       fund. Accordingly, inadequacy of the price offered in the highest tender would be
\n       a cogent ground for negotiating with the tenderers giving them equal opportunity
\n       to revise their bids with a view to obtain the highest available price. The
\n       inadequacy may be for several reasons known in the commercial field.
\n       Inadequacy of the price quoted in the highest tender would be a question of fact
\n       in each case. Retaining the option to accept the highest tender, in case the
\n       negotiations do not yield a significantly higher offer would be fair to the tenderers
\n       besides protecting the public interest. A procedure wherein resort is had to
\n       negotiations with the tenderers for obtaining a significantly higher bid during the
\n       period when the offers in the tenders remain open for acceptance and rejection
\n       of the tenders only in the event of a significant higher bid being obtained during
\n       negotiations would ordinarily satisfy this requirement. This procedure involves
\n       giving due weight to the legitimate expectation of the highest bidder to have his
\n       tender accepted unless outbid by a higher offer, in which case acceptance of the
\n       highest offer within the time the offers remain open would be a reasonable
\n       exercise of power for public good.”\n<\/p><\/blockquote>\n
9.      Reliance was also placed on another decision of the apex Court in the case of
\nRam and Shyam Company v. State of Haryana and others, reported in (1985) 3
\nSupreme Court Cases 267. In the said case, in an auction of minor mineral quarries in
\nrespect of a particular plot, the bid of the appellant therein was Rs.3,87,000\/- for a
\nperiod of 3 years and it was the highest. The said bid was accepted by the Presiding
\nOfficer but the State Government declined to confirm the same as the highest bid did
\nnot represent the market price. The Respondent No.4 in the said case who had also
\nparticipated in the auction approached the Chief Minister with certain complaints and
\noffered to pay Rs.4,50,000\/- per year if the contract would be for a period of 5 years.
\nThe said offer of Respondent No.4 was accepted by Chief Minister and the same was
\nchallenged by the appellant by way of a writ petition in the High Court. The High Court
\ndismissed the writ petition on a preliminary ground that the appellant has not exhausted
\nthe alternative remedy available to him. In a Special Leave Appeal, on the asking of the
\nHon’ble Supreme Court, the appellant filed an affidavit before the Court stating that if
\nthe highest bid at a re-auction fell short of Rs.4,50,000\/-, the appellant would undertake
\nto accept the contract at the value of Rs.5,50,000\/-. The Respondent No.4 was given
\nopportunity to raise his offer. As a result of the competitive offers made by the parties,
\nthe last offer of Respondent No.4 came out to Rs.22 lakhs whereas the offer of the
\nappellant was Rs.25 lakhs. The Hon’ble Supreme Court allowed the appeal on merits by
\n                                              7<\/span><\/p>\n
setting aside grant of quarry lease in favour of Respondent No.4 and directed the State
\nGovernment to grant contract to the appellant at the rate of Rs.25 lakhs per year for 5
\nyears. The Hon’ble Supreme Court took up the pain of permitting the parties to bid
\nbefore the Court itself solely considering the fact that by adopting such a process of
\nnegotiation, the State Government would be immensely benefited financially and
\ntherefore, it was required to be done in public interest without violating Article 14 of the
\nConstitution of India. A similar view has also been expressed by this Court in the case of
\nM\/s. Blue Star Ltd. v. State of Orissa & others<\/a>, reported in 2005 (I) OLR 521. In the
\naforesaid case, tenders were invited in sealed cover for supply of instrument and
\nequipment items for eight Regional Diagnostic Centres and in response to the said
\ntender call notice, the petitioner and opposite party No.3 therein along with others had
\nsubmitted their bids for C.T. scan machines. On ultimate analysis of the case, in
\nparagraph-12 of the judgment, the Court came to the following conclusion:\n<\/p>\n
                “In this case, the terms and conditions for acceptance of tender for
\n        supply of instrument and equipment items to the Government represented the
\n        rules for selection of the tenderer for such supply and to ensure transparency
\n        and fairness should have contained certain and clear terms for determination of
\n        the lowest suitable tenderer and should not have left any doubt as to how the
\n        lowest suitable tenderer will be selected. But, as we have seen, the terms and
\n        conditions therein were such as to create doubts in the mind of the tenderers as
\n        well as the State-level Purchase Committee as to whether the lowest suitable
\n        tenderer will be determined by taking into consideration price plus CMC or only
\n        price without CMC. The result was a choice was left to the authorities to either
\n        include CMC or exclude CMC from the price for determination of the lowest
\n        tenderer and the ultimate decision to include the CMC in the price for
\n        determining the lowest tenderer has resulted in not giving any opportunity to the
\n        petitioner to negotiate and bring down its CMC and make a competitive offer.
\n        Thus, the procedure followed in this case for selection of the lowest tenderer
\n        was obviously unfair to the petitioner and has affected its right to equality under
\n        Article 14 of the Constitution. In these peculiar facts and circumstances, we are
\n        of the view that the authorities must also negotiate with the petitioner to bring
\n        down its CMC and if the petitioner agrees to supply the C.T. scan machines at
\n        the composite price at which the opposite party No.3 has agreed to supply the
\n        C.T. scan machine, opposite parties 1 and 2 will place orders for supply of equal
\n        number of C.T. scan machines on the petitioner and the opposite party No.3 and
\n        the purchase order in Annexure-6 to the writ petition be modified accordingly.
\n        These directions have been given because it is stated before us that the funds
\n        will lapse unless the supply of the C.T. scan machines is made within March,
\n        2005 and there is no time at all either for a re-tender or for a re-consideration by
\n        the Government and because these directions will ensure fairness to both the
\n        petitioner and the opposite party No.3.”\n<\/p><\/blockquote>\n
               Shri S.K. Padhi, the learned Senior Counsel appearing on behalf of
\nopposite party No.4 placed reliance on a decision of the Hon’ble Supreme Court in the
\ncase of Directorate of Film Festivals and others v. Gaurav Ashwin Jain and others<\/a>,
\nreported in (2007) 4 Supreme Court Cases 737. The said decision deals with the
\npower of judicial review in policy matters. There is no dispute that the scope of judicial
\nreview of governmental policy is well defined and Courts do not and cannot act as
\nAppellate Authorities examining the correctness, suitability and appropriateness of a
\n                                                8<\/span><\/p>\n
policy, nor are the courts advisors to the executive on matters of policy which the
\nexecutive is entitled to formulate. The scope of judicial review while examining a policy
\nof the Government is to check whether it violates the fundamental rights of the citizens
\nor is opposed to the provisions of the Constitution, or any statutory provision or
\nmanifestly arbitrary. There is no quarrel over the above proposition of law which is
\nsettled by the Hon’ble Supreme Court in several decisions.\n<\/p><\/blockquote>\n
10.     On perusal of what has been laid down in the aforesaid decisions of the Hon’ble
\nSupreme Court as well as this Court, it is found that in the matter of tender invited by the
\nState or it’s instrumentality, the prime consideration is the public interest. It is the duty of
\nthe State to see that it gets the best price for the work entrusted by it to a private
\nindividual or organization. While doing so, if necessary, the State can also enter into
\nnegotiation with the intending parties to get the best price. Here is a case, where the
\nCorporation had fixed the upset price at Rs.5,36,00,250\/- and bids submitted by all the
\nthree bidders was more than the upset price fixed by the Corporation. Undisputedly
\namongst the three bids, the bid submitted by opposite party No.4 was the highest. The
\nnote sheet maintained by the Corporation shows that even though the bid submitted by
\nopposite party No.4 was much more than the upset price, it was suggested that the said
\nbid may be accepted or opposite party No.4 may be asked to negotiate his price. When
\nthe matter was placed before the higher authorities with the above note, a decision was
\ntaken to direct the opposite party No.4 to attend the office for negotiation of its quoted
\nrate and accordingly, the letter dated 16.7.2010 was issued to opposite party No.4 to
\nenhance the bid amount. The said letter also clearly indicates that the offer of
\nnegotiation given by the Corporation does not confer any right for award of the work in
\nfavour of opposite party No.4. There is no dispute that in response to the above letter,
\nopposite party No.4 appeared before the Corporation and refused to enhance the bid
\namount. Thereafter only the matter was placed before the Managing Director for
\nacceptance of the bid submitted by opposite party No.4. It is, therefore, evident that as
\non 16.7.2010, no decision had been taken by the Corporation to award the contract in
\nfavour of anyone and therefore, as on the said date, no right accrued in favour of
\nanyone of the tenderers. If the Corporation was of the view that the bid amount quoted
\nby opposite party No.4 is much higher than the upset price, there was no necessity of
\ninviting opposite party No.4 for negotiation for upward revision of the price quoted by
\nhim. There is some substance in the contention of the learned counsel appearing for the
\npetitioner that not being satisfied with the amount quoted by opposite party No.4, the
\nCorporation decided to call him to negotiate for upward revision of the quoted price.
\nOpposite party No.4 having refused to raise the price any further, the petitioner should
\nhave been also called to enhance his offer. Having called the opposite party No.4 for
\nnegotiation in spite of the fact that his offer was much more than the upset price clearly
\nindicates that the Corporation wanted to settle the contract for a better offer and
\naccordingly, it was the duty of the Corporation to call all the three tenderers for the
\npurpose of negotiation. This view is supported by the observations made by the Hon’ble
\napex Court in the case of Food Corporation of India v. M\/s. Kamdhenu Cattle Feed
\nIndustries<\/a> (supra). Having not invited the petitioner for negotiation after opposite party
\nNo.4 refused to enhance the bid amount quoted by him violates Article 14 of the
\nConstitution of India as has been held by the Hon’ble apex Court in the aforesaid case.
\nMerely because the Corporation adopted the practice of inviting the highest bidder only
\nfor negotiation cannot make such action legal, the same being violative of Article 14 of
\nthe Constitution of India.\n<\/p>\n
                                          9<\/span><\/p>\n
11.       For the reasons stated above, I respectfully agree with the view taken by
\nHon’ble Justice B.P. Das.<\/p>\n","protected":false},"excerpt":{"rendered":"
Orissa High Court L.Mohapatra vs Vrs on 20 August, 2010 L.MOHAPATRA, J. W.P.(C) NO.12509 OF 2010 (Decided on 20.08.2010) UMESH KUMAR PODDAR ………… Petitioner. .Vrs. STATE OF ORISSA & ORS. …………. Opp.Parties. CONSTITUTION OF INDIA, 1950 – ART.226. For Petitioner – M\/s. H.M.Dhal, & P.P.Mohanty. For Opp.Parties – Mr. J.Pattnaik (for O.P.No.1) M\/s.Milan Kanungo, s.K.Mishra, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,25],"tags":[],"class_list":["post-226324","post","type-post","status-publish","format-standard","hentry","category-high-court","category-orissa-high-court"],"yoast_head":"\nL.Mohapatra vs Vrs on 20 August, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/l-mohapatra-vs-vrs-on-20-august-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"L.Mohapatra vs Vrs on 20 August, 2010 - 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