M/S Radhakrushna Publications, Bbsr vs. State Of Odisha

The factual matrix of the case, in brief, is that office of the Director, Text Book Production and Marketing, Kharavel Nagar, Bhubaneswar issued a tender call notice bearing no.6484/TBPM dated 13.10.2022 for Printing and Binding of Nationalized Text Books for the academic session 2023-24. The last date of submission of bid was fixed to 09.11.2022, whereas the date of opening of technical bid was fixed to 10.11.2022. In response to the aforesaid tender call notice, the petitioner submitted its bid on 07.11.2022, which was duly acknowledged by the tender committee, as would be evident from the e-mail of the said date and, as such, the petitioner uploaded all the documents as per clause-11 of the tender documents containing important instructions to the tenderers for Printing and Binding of Nationalized Text Books.

1 The petitioner, for its printing purpose, is utilizing a portion of the IDCO Plot No.H-18, Mancheswar Industrial Estate, Bhubaneswar by executing rent agreement with the owner Ambika Prasad Das (husband of the proprietress of the petitioner), Managing Director of M/s Radhakrushna Publications Pvt. Ltd. on payment of rent. As such, the utilization part of plot has been approved by the IDCO, as per letter dated 05.04.2022. In accordance with the aforesaid agreement, the petitioner is using the electricity connection of M/s Radhakrushna Publications Pvt. Ltd. and paying the electricity charges as per the bills raised by it and the said bills are inclusive of GST.

2 As per clause-11 of the tender documents under Annexure-1, “the unit should have three phase electricity connection bill or any other supporting documents of electricity connection”. Thereby, the petitioner, being a tenant under M/s Radhakrushna Publications Pvt. Ltd., is utilizing the industrial power availed by the unit, as would be evident from the bills raised by the TPCODL where 11 KV connection has been given through its own transformer. In the earlier year, the petitioner was awarded with the contract of printing books for the opposite party no.2 on the basis of the said credentials. The technical bid was opened on 10.11.2022 on the schedule date and time. But, on 24.11.2022, the petitioner received a message in the registered mobile phone regarding admission of the bid by the duly constituted committee.

3 It is worthwhile to mention here that out of 149 bidders, 146 firms were found to have qualified and three firms were disqualified in the technical bid. The firms disqualified are (i) Radhakrushan Publications, the petitioner herein; (ii) M/s Amarjyoti Printers; and (iii) Shree Lingaraj Process Offset. The reasons assigned regarding rejection of the technical bid of the petitioner was “the firm has not uploaded the three phase electric bill document in the e-tender and also could not produce the said document at the time of physical verification, which violates clause-2 of the terms and conditions of the tender notice”. Similarly, reasons assigned for rejection of M/s Amarjyoti Printers is “A complaint was received that the firm does not have electricity connection. The technical committee on physical inspection found that the firm does not have electricity connection, which violates clause-2 of the terms and conditions of the tender call notice.” 2.4 The petitioner, having come to know about its disqualification in the technical bid, made representation on 28.11.2022 along with three phase electricity bill and also explained that during the inspection she could not provide the relevant documents as she had gone to attend funeral ceremony of her sister-in-law at Kendrapara. The petitioner also produced the relevant documents as Enclosure-1 and 2, which are copies of the electricity bill invoices of M/s Radhakrishna Publications and TPCODL bills. That apart, the petitioner also produced all other relevant documents and her credentials for the printing order. The reasons for non-consideration of the technical bid of the petitioner is evident from the approval made by the Addl. Secretary to Govt. on 19.12.2022 enclosing the copy of the proceeding dated 05.12.2022 of the purchase committee. It was also pointed out by the petitioner that M/s Amarjyoti Printers, Bhubaneswar, which was disqualified along with the petitioner, had made representation and on the basis of which its case was considered subsequently and its tender was accepted. So also one Divine Printers, which has taken on rent the premises, in which printing press is working, from one Prasanta Kumar Moharana of Bidyadharpur, Nayabazar, PS- Chauliaganj, Cuttack, has qualified though neither the place nor the electricity connection stands in its name and, as such, the electricity connection stands in the name of M/s Sidhartha Drinks Pvt. Ltd., the landlord in that case. Thereby, the petitioner contended that non-consideration of its case, in spite of all the documents produced before the authority, is arbitrary, unreasonable and contrary to the provisions of law and, as such, consideration of similarly situated bidders, by excluding the petitioner, amounts to discrimination.

5 Aggrieved by the action of the authority, with regard to non-consideration of its case, the petitioner had earlier approached this Court by filing W.P.(C) No.36233 of 2022, which was disposed of, vide order dated 03.01.2023, with a direction to the opposite parties to consider her representation vide Annexure-7 series to the said writ petition. In compliance of the said order, ultimately the representation of the petitioner was rejected by the authority, vide order dated 20.02.2023 under Annexure-11, by holding that “on verification of the document, it is ascertained that the petitioner had not uploaded any electric bill neither in the name of the firm nor in the name of the firm the petitioner borrowing the electric power on rent.” Hence, this writ petition.

Mr. Santanu Kumar Sarangi, learned Senior Counsel appearing along with Mr. Sudeep Kumar Sarangi, learned counsel for the petitioner contended that non- consideration of the case of the petitioner amounts to arbitrary and unreasonable exercise of power. More so, the action taken by the authority is discriminatory, as similarly situated persons, those who had participated in the bid, their technical bids have been considered, whereas the same has been denied in the case of the petitioner. It is further contended that the petitioner had uploaded the document under Annexure-5, i.e., Bill of Supply of Electricity, from which it would be evident that electricity charges for the period from 07.10.2021 to 28.02.2022, vide bill no.ELE-1/21-22 dated 11.03.2022, was paid by M/s Radhakrushna Publications Pvt. Ltd., with whom the petitioner has executed the rent agreement, but the same was not taken into consideration. It is contended that if the owner of the premises has three phase supply of electricity and for that payment has been made to the electricity authority, in that case the tendering authority should have applied their mind for consideration of the case of the petitioner. Therefore, the action taken by the authority in rejecting the technical bid of the petitioner cannot be sustained in the eye of law. Consequentially, it is stated that the order of rejection of the technical bid of the petitioner should be set aside.

Mr. T. Pattnaik, learned Addl. Standing Counsel appearing for the State-opposite parties contended that on 13.10.2022, the tender notice was issued by opposite party no.2 inviting applications from the interested bidders for printing, binding and delivery of Nationalized Text Book for academic session 2023-24. Clause-2 of the tender documents provides that the bidder should have own web offset machine, two wire stitching machines, one cutting machine and two bundling machines and three phase industrial electric line connection. The tenderer who does not have such machines, his tender will not be considered. As the petitioner had not uploaded any electricity bill either in the name of her firm or in the name of the firm from which she is borrowing the electricity power, as ascertained from the technical bid uploaded by the petitioner, the technical bid of the petitioner was rejected. As such, no illegality or irregularity has been committed by the authority in rejecting the technical bid of the petitioner.

1 It is further contended that the petitioner has never uploaded electric bill of three phase at the time of submission of its bid and, therefore, rejection of its technical bid is well justified. So far as the parity claim along with M/s Amarjyoti Printers, Bhubaneswar is concerned, it is contended that M/s Amarjyoti Printers had uploaded its electricity bill in the e-tender portal. Later on, a complaint was received by the Directorate that the firm does not have electricity connection. Thereafter, the technical committee was deputed to ascertain the fact and on physical inspection it was found that the firm did not have electricity connection. But, later on, a representation was received from M/s Amarjyoti Printers enclosing a certificate from the Section Incharge (Elect.), Mancheswar B.E.D. to the effect that the concerned firm, having CA No.8000013511, is regularly paying bills as a consumer of TPCODL and has no outstanding dues. The Section Incharge (Elect.), Mancheswar, B.E.D. has also mentioned in his report that on 24.11.2022 at 12.58 PM, he has received a complaint from M/s Amarjyoti Printers that there was no power supply in its premises. On verification, it was found that the power supply of the printing press had been interrupted due to L.T. neutral disconnection of its private transformer. Therefore, on the basis of the certificate, the committee unanimously agreed to consider the representation of M/s Amarjyoti Printer, Bhubaneswar to allow it for the year 2023-24. As such, it cannot be said that the petitioner stands on the same footing with that of M/s Amarjyoti Printers so as to claim the benefit of parity. Thereby, the State Level Purchase Committee is well justified in rejecting the technical bid of the petitioner due to non-uploading of the electricity bill by the petitioner. Similarly, so far as M/s Divine Printers, Cuttack is concerned, it is contended that M/s Divine Printers, Cuttack has uploaded the electricity bill of M/s Siddarth Drinks Pvt. Ltd., who is the landlord and has rented out the premises to M/s Divine Printers. Therefore, consideration of its bid cannot be said to be illegal or arbitrary and, as such, the petitioner having not stood with the same footing, the authority has rightly rejected its technical bid. Thereby, the claim made by the petitioner cannot be sustained in the eye of law and the writ petition is liable to be dismissed.

This Court heard Mr. Santanu Kumar Sarangi, learned Senior Counsel appearing along with Mr. Sudeep Kumar Sarangi, learned counsel for the petitioner and Mr. T. Pattnaik, learned Addl. Standing Counsel appearing for the State-opposite parties by hybrid mode, and perused the records. Pleadings having been exchanged, with the consent of learned counsel for the parties this writ petition is being disposed of finally at the stage of admission.

Before delving into the merits of the case, relevant provisions of the tender documents are referred to herein below:- “Important Instructions to the Tenderers for Printing and Binding of Nationalized Text Book.

The Tender shall accompany the following documents:- (a) Cost of tender paper in shape of bank draft to be enclosed. (b) EMD as required duly pledged in favour of Director, TBPM, Bhubaneswar. (c) Self-attested copy of GST Regd. Certificate and GST Clearance Certificate of last 3 months. (d) TECHNICAL BID duly filled in. (e) PRICE BID duly filled in. (f) Self-attested copy of PAN CARD. (g) The “Terms & Conditions” duly attested and given under an affidavit as prescribed. (h) Inspection charge as required duly pledged in favour of Director, T.B.P. & M., Bhubaneswar payable at Bhubaneswar. (i) Document in support of ownership of Web Offset Machine, two wire stitching machines, one cutting machine, two bundling/packet machines by the binding firm. (j) Document in support of space/land/legal heir certificate of land issued by competent authority within six months prior to date of publication of advertisement. (k) Self attested copy of permanent D.I.C. Registration/The Factory Act, 1948 Registration/Registration Certification under Shop & Establishment Act, 1948. (l) Three phase industrial electric connection bill or any other supporting documents of electric connection. (m) Self attested copy of Income Tax Return of last three years. N.B.:- Failure to furnish the aforesaid documents may entail rejection of the Tender.”

The Tenderer should have own Web Offset Machine, two wire stitching machines, one cutting machine and two bundling machines and three phase industrial electric line connection. The Tenderer who does not have such machines, his tender will not be considered. xxx

On perusal of the aforesaid provisions, it is made clear that a tenderer should have own web offset machine, two wire stitching machines, one cutting machine and two bundling machines and three phase industrial electric line connection. As it appears, as per clause-2 of the aforesaid terms and conditions, one of the requirements, as has been specified therein, is that there must be three phase industrial electric line in the premises. As such, sub-clause (l) of clause-11 specifically provides that the tenderer shall accompany three phase industrial electric connection bill or any other supporting documents of electric connection, and failure to furnish such document may entail rejection of the tender. Thereby, these are the mandatory requirements to be followed by a tenderer while submitting the bid.

There is no dispute that the petitioner has taken the premises on rent from M/s Radhakrushna Publications Pvt. Ltd. by executing the rent agreement dated 07.10.2021, which has been marked as Annexure-3 to the writ petition and, as such, M/s Radhakrushna Publications has three phase electricity connection. The said agreement was valid for a period of five years w.e.f. 07.10.2021. As such, clause-3 of the said agreement provides that the electricity dues shall be paid as per the portion used by the petitioner. Along with the bid documents, the petitioner has uploaded the bill of supply of electricity of TPCODL in favour of the owner of the premises of the petitioner, i.e., M/s Radhakrushna Publications Pvt. Ltd vide Annexure-5, which carries the electricity consumer number, consumer ID, and also the petitioner furnished the tax invoices issued under CGST Act/GST Act/SGST Act/UTGST Act, 2017, where the period of electricity charges, i.e., from 07.10.2021 to 28.02.2022 and bill no.ELE-1/21-22 dated 11.03.2022 are mentioned. As it appears, the petitioner has uploaded the above documents along with the bid documents and also furnished the rent agreement. Therefore, there is no iota of doubt that the petitioner has complied with clause-2 of the terms and conditions for Printing and Binding of Nationalized Text Books provided under enclosure to Technical Tender (Form-A) and intimated the authority that the premises is having three phase industrial electricity connection along with other requirements which the petitioner fulfilled.

It is of relevance to note that taking into consideration this aspect, the petitioner was qualified in the tender for the year 2021-22, but now a different stand has been taken that the petitioner has not uploaded the electricity bill, as per requirement of sub-clause (l) of clause-11. If scrutiny is made to sub-clause-(l) of clause- 11, it puts a mandate that the tenderer was to furnish three phase industrial electricity connection bill or any other supporting documents of the electricity connection along with the application. Thereby, by using the word “or”, it clearly mentioned that the tenderer has to produce either (i) three phase industrial electricity connection bill; or (ii) any other supporting documents of the electric connection. That means, if either of the one is there, the bid of the tenderer would be accepted. From the documents, which were uploaded by the petitioner and which have been placed on record, it is clearly evident that the bill of supply of electricity to the owner of the premises, which the petitioner has taken on rent, was uploaded and also the tax invoices under CGST Act stands in the name of the owner of the premises M/s Radhakrushna Publications Pvt. Ltd., from whom the petitioner has taken the premises on rent by executing the rent agreement, which has also formed part of the record of this case. As such, as per clause-3 of the rent agreement, the electricity dues shall be paid as per the portion used by the petitioner. Therefore, it is made clear and conclusive that the premises of the petitioner is connected with three phase supply of electricity and the owner of the premises, who has given the same on rent, has paid the electricity being collected from the petitioner. Thereby, the requirement under clause-2 of the terms and conditions of the tender documents has been complied with. Furthermore, in the representation filed by the petitioner even though such documents were annexed, but the same were not considered in proper perspective. Rather, the opposite parties have tried to justify their action bereft of the materials. Thereby, such action of the opposite parties is arbitrary, unreasonable and contrary to the provisions of law. So far as consideration made to the bid of M/s Amarjyoti Printers is concerned, as it appears, the committee took steps for verification of the premises itself and came to a conclusion on the basis of the documents filed by it that it had satisfied clause-2 of the tender conditions read with clause-11 of the tender documents and, thereby, entertained the bid of the M/s Amarjyoti Printers. But, the petitioner, having stand on the same footing, has been discriminated, which violates Article 14 of the Constitution of India.

The petitioner having uploaded the electricity bill of M/s Radhakrushna Publications Pvt. Ltd., of which it was the tenant, as per the rent agreement vide Anenxure-3 dated 07.10.2021, the same should have been given due credentials. The GST tax invoice, with regard to electricity charges for the period from 07.10.2021 to 28.02.2022, also indicates that the same stands in the name of M/s Radhakrushna Publications Pvt. Ltd. Therefore, those documents can very well be taken into consideration as “any other” documents of electricity connection. The expression “any other” is wide enough to include the supporting documents of electricity connection to the premises.

In Indra Sawhney v. Union of India, AIR 1993 SC 477 : 1992 Supp.(3) SCC 217, the Nine Judge Bench of the apex Court while dealing with Article 14 of the Constitution of India held that the doctrine of equality is a dynamic and evolving concept, which has many facets. The concept of equality before law means that among equals the law should be equal and should be equally administered and the likes should be treated alike. All that Article 14 guarantees is a similarity of treatment and not identical treatment.

In Omkar Lal Bajaj v. Union of India, AIR 2003 SC 2562 : (2003) 2 SCC 673, the apex Court held that an order passed without application of mind deserves to be annulled being an arbitrary exercise of power. However, if two views are possible and the Government takes one of it, it should not be amenable to judicial review on the ground that the other view, according to courts, is a better view.

In State of U.P. v. Maqbool Ahmad, (2006) 7 SCC 521, the apex Court held that equal protection means the right to equal treatment in similar circumstances, both in the privileges conferred and in the liabilities.

In M. Nagaraj v. Union of India, (2006) 8 SCC 212, the apex Court held that the basic principle underlying Article 14 is that the law must operate in all persons under like circumstances, because equality is the basic feature of the Constitution. The content of Article 14 was originally interpreted by the apex Court as a concept of equality confined to the aspects of discrimination and classification. The concept of Article 14 got expanded conceptually so as to comprehend the doctrine of promissory estoppels, non-arbitrariness, compliance with rules of natural justice eschewing irrationality etc.

In M.P. Gangadharan v. State of Keral, (2006) 6 SCC 161: AIR 2006 SC 2360, the apex Court held that the Constitutional requirement for judging the question of reasonableness and fairness on the part of the statutory authority must be considered having regard to the factual matrix obtaining in each case. It cannot be put in a straitjacket formula. Before an action is struck down, the court must be satisfied that a case has been made out for exercise of judicial review.

In Style (Dress Land) v. Union Territory, Chandigarh, (1999) 7 SCC 80 : AIR 1999 SC 3678, the apex Court held that in the absence of rules, the action of the Government is required to be fair and reasonable.

In L.I.C. of India v. Consumer Education and Research Centre, (1995) 5 SCC 482: AIR 1995 SC 1811, the apex Court held that in the sphere of contractual relations, the State, its instrumentalities, public authorities or those whose acts bear insignia of public element, action to public duty or obligation are enjoined in a manner that is fair, just and equitable, after taking objectively all the relevant options into consideration and in a manner that is reasonable, relevant and germane to effectuate the purpose for public good and in general public interest and it must not take any irrelevant or irrational factors into consideration or appear arbitrary in its decision.

Applying the above propositions of law, as enshrined in the context of Article 14 of the Constitution of India, to the present case, this Court is of the considered view that the entire action of the opposite parties is arbitrary, unreasonable and discriminatory. Since the order impugned rejecting the technical bid of the petitioner, which has been passed without any application of mind and mechanically, debars the petitioner to carry out its business, it violates Article 19 (1)(g) of the Constitution of India. Therefore, rejection of the technical bid of the petitioner in a proceeding of the State Level Purchase Committee meeting held on 05.12.2022 under Annexure-8 and consequential rejection of representation of the petitioner vide Annexure-11 dated 20.02.2023, which has been passed in pursuance of the order dated 03.01.2023 passed by this Court in W.P.(C) No. 36233 of 2022, cannot be sustained in the eye of law and are liable to be quashed and are hereby quashed. The opposite parties are directed to take into consideration the technical bid submitted by the petitioner as valid, in view of the documents filed by it, and take follow up action by giving opportunity to the petitioner in accordance with law.

In the result, the writ petition is allowed. But, however, under the facts and circumstances of the case, there shall be no order as to costs.