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High Court cannot seat as Appellate Authority involving terms of contract and its role is confined only to see any infirmity in the decision making process: Odisha High Court

“…for cancellation of the previous tender process, they are to go for fresh tender process for supply and commissioning of same objects, it will be abided by such commitments.”, this remarkable stand was forwarded by Odisha HC in the writ appeal case of ASCENOER Lift & Automation Private Ltd v. State of Odisha & another, [W.P.(C) No.16174 of 2019], chaired by Hon’ble chief justice Mr. Mohammad Rafiq & Hon’ble Justice Mr. Biswanath Rath of  Odisha HC, the bench in this present case disposed the instant writ appeal, with no further order as to cost.

This Writ Petition is filed seeking a direction from this Court to set aside the order dated 19.08.2019 in cancellation of the tender call notice vide Annexure-4.

Short background involved in this case is that petitioner being a private company is incorporated under the Companies Act and represented through its Chairman. The O.P.2-the Chief Engineer, Orissa State Housing Board floated the tender call notice at a cost of Rs.1,26,50,000/- for work and supply with installation / testing and commissioning of 8nos. of 6 passenger lift and one number of 8 passenger lift including supply and installation of Servo Stabilizer and Comprehensive Annual Maintenance (CMC) for two years excluding the OEM provided warranty period of lift for the work of multistoried residential apartment (LIG Block) Phase-VII at Dumduma, Bhubaneswar. In the tender call notice eligible criteria of the bidders has been specifically stated in clause-2 and prior to participation in the tender the bidders were advised to verify the spot. Copy of the tender call notice is at Annexure-1. Meeting with the eligible criteria petitioner submitted all required documents before the O.P.2. It is stated that the Tender Committee accepted the proposal submitted by the petitioner. There were 8 agencies who had applied pursuant to the tender call notice and the Tender Committee rejected the proposals of Omega Elevator, Kumar Elevator and M/s. Bharat Elevator as they are not technically qualified on the basis of insufficient experience, but however, selected M/s. Arohi Elevator, M/s. LT Elevator and the petitioner as they were qualified technically and after these parties technically qualified the Tender Committee considered the financial bid. In the financial bid petitioner as well as one Arohi Elevator Private Ltd. quoted their percentage i.e. 14.99 and both of them were selected as L-1. As there were two parties standing at L-1, the Tender Committee entered into a lottery process between Arohi Elevator 3 and the petitioner and in the process, petitioner became the successful bidder. Pleadings made in this Writ Petition further discloses that in spite of depositing of a sum of Rs.1,26,500/- towards EMD by the petitioner, the O.P.2 did not issue the work order in favour of the petitioner and ultimately the petitioner came to know that the O.P.2 has cancelled the tender notice vide its order dated 19.08.2019 without assigning any reason and also without even communicating the same to the petitioner. It is submitted that petitioner could only get the information about cancellation of the tender notice through the Notice Board of the party concerned.

After examining all the submissions, arguments and evidences forwarded by the councils, the Hon’ble HC observed that, “there is no illegality or impropriety on the part of the O.P.2 in cancelling the earlier tender. It is, at this stage of the matter, this Court also records its expectation that for the disclosure in the counter affidavit at the instance of O.P.2 more particularly through paragraph nos.3 & 6 therein that in cancellation of the previous tender process they are to go for fresh tender process for supply and commissioning of same objects, it will be abided by such commitments.”

The bench further added that, “Before parting with the judgment in upholding the decision of the authority in cancellation of the tender call notice vide Annexure-4, this Court keeping in view that there is some deposit at the instance of petitioner lying with the O.P.2, directs, such deposit shall be refunded to the petitioner with interest @7% per annum although within a period of seven days from the date of communication of a copy of this judgment by either of the parties. This Court here clarifies that for withdrawal of the Annexure-A during pendency of the Writ Petition the interim direction dated 25.11.2019 rendered infractuous and the Opposite Parties will be at liberty to go ahead with their decision on fresh tender.”

In lieu of the above made considerations and observations, the bench in this present case dismissed the writ with no order as to cost.

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