The purpose of judicial review is to avoid arbitrariness, irrationality, lack of logic, prejudice and mala fide. The aim is to verify if choices or decisions have been made “legally” and not to evaluate if choices or decisions are sound. If the authority of judicial control is used on bids or contract awards, specific characteristics should be taken into consideration. The judgment was passed by The High Court of Orissa in the case of M/s. Ashirbad Industries & Others Vs the State of Odisha and Ors. [W.P.(C) No. 2850 OF 2021] by Single Bench consisting of Hon’ble Shri Justice. B.P. Routray.
Three petitioners have jointly filed the present writ petition challenging the cancellation of the Tender Call Notice invited through e-Tender by the Executive Engineer to execute the Hydro-Mechanical Gate works under different Civil Divisions.
Learned Counsel for the Petitioners contends that when the writ petitions filed by the Petitioners praying for finalizing the tender are pending adjudication, the order of cancellation passed by the Executive Engineer under Annexure-1 is erroneous and hit by the principles of lis pendens. His further contention is that, when the Petitioners have been selected as successful bidders, the unilateral action of the Opposite Parties in cancelling the tender without giving any opportunities of hearing to the Petitioners is illegal, arbitrary and not sustainable in the eye of law.
The Learned Counsel submits that mere acceptance of the bid of the Petitioners by the Executive Engineer without the approval of the higher authorities, i.e., the Superintending Engineer and Chief Engineer does not create any right in their favour for the execution of the work. He further submits that as per the Tender Call Notice, the authority reserves the right to reject any order or all of the bids even without assigning any reason.
He continues to submit that upon re-verification of the bids at the level of Superintending Engineer and Chief Engineer since the error was noticed in the evaluation of bids, the same needs to be rectified by making a conscious decision in cancelling the tender process and thus no illegality is involved in the same. Further, since no agreement has been executed with the Petitioners, no right of the Petitioners can be said to have been violated by such cancellation.
The court while further, clearing the contention of the petitioner noted that “the doctrine of lis pendens as envisaged in Section 52 of the Transfer of Property Act, denotes the operation of common-law maxim pendent lite nihil innovetur. It is based on equity, good conscience and justice because it will be impossible to bring an action or suit to a successful termination if changes are permitted to prevail.”
While dismissing the petition the court observed that “Since by mere acceptance of the bid documents on the part of the Executive Engineer would not create any right in favour of the Petitioners, the cancellation of the tender also cannot be said to have attracted the doctrine of lis pendens.”