Date of Judgment

207 Pages·2015·1.08 MB·English

2015 (I) ILR - CUT- 221

AMITAVA ROY, CJ & DR. A. K. RATH, J.

W.P.(C) NO.15701 OF 2013

SUDARSAN BARIK ……..Petitioner

.Vrs.

THE M.D., ODISHA
FOREST DEVELOPMENT
CORPORATION LTD. ………Opp.Party

TENDER – Highest bidder called upon to deposit deficit E.M.D. –
Failure to do so – Forfeiture of amount towards E.M.D./Security deposit
as per the terms and conditions of the tender call notice – Held,
impugned action is valid. (Para 13)

Case laws Referred to:-

1.(1986) 3 SCC 247 : (Harminder Singh Arora-V- Union of India)
2.(2009) 3 SCC 458 : (B.S.N. Joshi & Sons Ltd.-V- Ajoy Mehta)
3.AIR 1979 SC 1628 : (Ramana Dayaram Shetty-V- International Air Port
Authority of India & Ors.)

For Petitioner - M/s. Biren S.Tripathy, M.K.Rath,
J. Pati & M. Bhagat.
For Opp.Party - M/s. Santosh Kumar Pattnaik,
P.K. Pattnaik & S.P. Das.
Date of Judgment : 18.11.2014

JUDGMENT

AMITAVA ROY, C.J.

The petitioner, who is a participating tenderer in the process initiated
by the notice dated 16.10.2012 issued by the Managing Director, Orissa
Forest Development Corporation, (for short, hereinafter referred to as “the
Corporation”) seeks to impugn the decision to forfeit his EMD/security
deposit for his failure to offer the entire amount of earnest deposit in terms of
the stipulation to that effect.

2. We have heard Mr B.S. Tripathy, learned counsel for the petitioner
and Mr S.K. Patnaik, learned Senior Advocate for the opp. parties.

3. Briefly stated, the facts are that the process aforementioned was
initiated for collection of cashew nuts with thalamus from the plantation lots
of Bhubaneswar (Commercial) Division and other Divisions for three years
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i.e. 2013, 2014 and 2015 crop. The petitioner had submitted his sealed tender
for lot No.27/13 (Kadambajhara RF) and 32/13 (Sulia RF) on 30.10.2012.
According to him, he offered a price of Rs.24,33,000/- for lot No.27/13 and
Rs.9,63,000/- for lot No.32/13 and also deposited Rs.3,50,000/- and
Rs.1,50,000/- respectively by way of earnest money along with the tender
papers. A dispute followed as lot No.27/13 was declared in favour of one
Shri Nigamananda Parida at his offer price of Rs.13,51,000/- though the
petitioner had offered much higher bid, in connection with which, W.P.(C)
No.22424 of 2012 was instituted in this Court. During the pendency of the
said writ petition, as averred by the petitioner, the Corporation put lot
No.32/13 to auction and settled it for Rs.13,27,000/-in favour of one Shri
Golakh Marthi in spite of the orders passed by this Court not to finalize the
tender process.

4. Be that as it may, while the matter stood at that, the petitioner received
the impugned letter dated 03.06.2013 of the Managing Director of the
Corporation intimating him that on his failure to deposit the entire amount of
earnest money and royalty/lease rent for 2013 crop though called upon to do
so vide office letter No.20602/ PL/24/ 12/ dated 01.12.2012 and letter
No.21603/PL/24/12 dated 15.12.2012, the amount of Rs.3,50,000/- deposited
by him as EMD stood forfeited in accordance with the provisions of clause
Nos.4 and 14 of the terms and conditions of the tender sale. Contending that
the impugned decision is illegal and arbitrary the petitioner seeks redress.

5. The opp. party-Corporation in its counter has averred vis-à-vis plantation
lot no.32/13, that the petitioner had offered a bid of Rs.24,33,000/- for three
years (2013 to 2015) and not Rs.9,63,000/- as claimed by him. According to
the Corporation, in terms of his offer i.e. Rs.24,33,000/- his earnest money
deposit of Rs.3,50,000/- was short of 15% of the offered amount in terms of
Clause No.4(a) of the terms and conditions of the tender. The answering opp.
party stated further that as the petitioner’s bid was adjudged to be the highest,
his offer was accepted subject to his depositing the balance EMD of
Rs.14,950/-. However, as the petitioner in spite of the letters dated
01.12.2012 and 15.12.2012 referred to in the impugned order failed to make
deposit of the balance amount as well as the royalty/lease rent from 2013
crop, his EMD of Rs.3,50,000/- was forfeited in terms of Clause Nos.4 and
14 and of the terms of the conditions of the tender sale.

6. Mr B.S. Tripathy, learned counsel for the petitioner, has urged that
though the EMD accompanying the tender with the highest bid was not as
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prescribed, in the facts and circumstances of the case, the impugned
forfeiture is unwarranted and is liable to be interfered with.

7. Mr S.K. Patnaik, Sr. Advocate, in reply, has argued that as the relevant
records demonstrates that the petitioner’s bid for lot No.32/13 was for
Rs.24,33,000/- and thus the earnest money deposit of Rs.3,50,000/- was short
of the amount prescribed by Clause No.4(a) of the terms and conditions of
sale, the opp. party-Corporation was justified in forfeiting the said amount as
mandated by Clause (4)(b) of the terms and conditions of sale, as in spite of
two notices he (petitioner) did fail to make up the deficit in the earnest
money deposit and pay the royalty/lease rent for 2013 crop.

8. Upon hearing the learned counsel for the parties and on consideration
of the pleaded facts and the documents on record, we are of the opinion that
no interference is called for. There is no manner of doubt that vis-à-vis
Cashew lot No.32/13 the petitioner had offered his bid for Rs.24,33,000/-
and, accordingly, the EMD of Rs.3,50,000/- being less than 15 % of his
quoted offer, the opp. party-Corporation was well within its right in terms of
Clause No.4(b) of the terms and conditions of sale to forfeit the same as he
failed to make the deposit and also pay the royalty/lease rent for 2013 crop in
spite of the notices dated 01.12.2012 and 15.12.12 calling upon him to do so.
The relevant provisions of Clause 4(a), 4(b), 12 and 14 of the terms and
conditions of sale are quoted herein below:

“4(a) Intending tender shall be required to submit tender only in the
prescribed form to be obtained from the above address as well as
from concerned Divisional Managers/Sub-Divisional Offices on
payment of Rs.200/- (Rupees two hundred only) (non-refundable)
with initials and seal of the issuing officer. Each tender must
accompany with Earnest Money Deposit (E.M.D.), 15 % of the
tendered amount in shape of Account Payee Bank Draft drawn at any
Nationalized Bank/Scheduled Bank payable at Bhubaneswar in
favour of “Odisha Forest Development Corporation Limited”, Money
Receipt in support of purchase of tender form, up to-date VAT
clearance certificate in form VAT-612 and VAT Registration Number
(TIN) or undertaking to produce VAT Registration Number before
execution of the agreement.

4(b) The tender with highest bid, but not accompanied with
prescribed E. M.D. shall be forfeited with deposited E.M.D. on
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tenders of the lot in question, which shall be settled as deemed fit by
the OFDC Ltd.

xx xx xx xx

12. The successful tenderer shall have to deposit 1/3rd (One-third) of
the tendered amount for a crop year towards royalty in one
installment as per the following schedule:-

- for 2013 crop year – on or before 10th day of issue of demand
letter.

- for 2014 crop year – on or before 30.09.2013.

- for 2015 crop year – on or before 30.09.2014

xx xx xx xx

14. In the event of failure to deposit the royalty as stipulated in clause
No.12, the Odisha Forest Development Corporation Limited will be
at liberty to forfeit the security deposit and part royalty paid if any
without issuing any show cause notice to the tender and without
assigning any reason thereof. The forfeiture of Earnest Money
Deposit/Security Deposit/ part royalty shall be treated as final and
conclusive and the Corporation shall be at liberty to re-lease the lot in
any manner as deemed expedient.”

9. The above quoted text would demonstrate in clear terms that the
impugned action of forfeiture of the earnest money deposit of Rs.3,50,000/-
on the petitioner’s failure to comply Clause Nos.4(a) and 12 was in valid
compliance of Clause Nos.4(b) and 14. In absence of any rejoinder on the
part of the petitioner, it also not possible to conclude that the pleaded
averments of the opp. party-Corporation that prior to the impugned order the
petitioner had been required to make the required deposit as per letter
Nos.01.12.2012 and 15.12.2012 is untenable on facts. Thus, the impugned
action is not only inconformity with the relevant clauses of the terms and
conditions of sale but also in compliance with the principles of natural
justice.

10. As it is in a process initiated by the State, its instrumentalities and any
public authority contemplating participation of eligible members of the
public, the professed norms and stipulations proclaimed to govern the same
ought to be strictly adhered to. In other words, such an authority for the sake
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of fairness, transparency and objectivity in the process is to be held
rigorously to such norms and stipulations lest the exercise undertaken
degenerates to be unfair, clandestine, veiled and discriminatory. Inflexibility
in the matter of enforcement of such norms to ensure uniformity in approach
and consistency in decision is thus an inviolable imperative in every public
participatory process.

11. It has been held time out of number by the Hon’ble Apex Court that an
essential tender condition must be strictly adhered to as reiterated in
Harminder Singh Arora v. Union of India, (1986) 3 SCC 247 and in
B.S.N. Joshi & Sons Ltd. v. Ajoy Mehta, (2009) 3 SCC 458.

12. This judicially evolved rule on administrative law has reverberated
since the classical enunciation of Mr Justice Frankfurter in Vitarelli v.
Seaton (1959) 359 US 535, and referred to with approval by the Hon’ble
Apex Court in Ramana Dayaram Shetty v. International Air Port Authority
of India and others, AIR 1979 SC 1628, wherein it was predicated that an
executive authority must be rigorously held to the standards by which it
professes its action to be judged and that it must scrupulously observe those
standards on the pain of invalidation of an act of any violation thereof.

13. In the facts and circumstances of the case, to reiterate, we are of the
unhesitant opinion that the impugned action is in strict adherence to the terms
and conditions of the sale and thus no interference in the exercise of power of
judicial review, in our comprehension, is warranted. The petition lacks in
merit and is dismissed.
Writ petition dismissed.

2015 (I) ILR - CUT- 225

AMIVATA ROY, CJ & DR. A. K. RATH, J.

RVWPET NO.16 OF 2014

RUKMUNI DAS ……..Petitioner

.Vrs.

STATE OF ODISHA & ORS. ……..Opp.Parties
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CIVIL PROCEDURE CODE, 1908 – O- 47, R-1

Review – Judgment passed by a Coordinate Bench of this Court
holding that mere failure of tubectomy operation could not be per se be
demonstrative of medical negligence entitling the person undergoing
the same to compensation – There is neither any admission on the part
of the opposite party nor any proof of medical negligence vis-a-vis the
petitioner as acknowledged in law – Writ petition adjudicated on merits
– No reason to entertain the review petition which is dismissed.
(Paras 8,13)
Case laws Referred to:-

1.(2005) 7 SCC 1 : (State of Punjab-V- Shiv Ram & Ors.)
2.(2009) 3 SCC 1 : (Martin F.D’Souza-V- Mohd. Ishfaq)
3.(1957) 2 All ER 118 : (Bolam-V- Friern Hospital Management Committee)

For Petitioner - Mr. Dhaneswar Mohanty
For Opp.Parties - None

Date of hearing : 28.10.2014
Date of judgment : 28.10.2014

JUDGMENT
AMITAVA ROY, C.J.
Heard Mr. D. Mohanty, learned counsel for the review applicant.
2. By the instant application, a review of the judgment and order dated
18.12.2013 rendered in W.P.(C) No. 3156 of 1997 has been sought for.
3. The review applicant had instituted the aforementioned writ
proceeding attributing medical negligence in conducting tubectomy
operation on her for the failure whereof she had conceived for the third time
and had eventually given birth to a female child on 3.4.1996. She had
pleaded that she had undergone the tubectomy surgery on 17.4.1993,
whereafter she had duly been issued one Green Card entitling her to the
benefits enumerated in the relevant regulations of the Health and Family
Welfare Department of the State of Orissa. Alleging that due to deficiency
in the surgical procedure involved, she did sustain financial loss and also
suffered from mental agony she sought the intervention of this Court by
filing the writ petition for an appropriate writ directing the opposite party to
pay adequate compensation and for releasing all benefits as contemplated for
a Green Card Holder. A direction to take steps for rectification of the
operational errors free of costs was also prayed for.
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4. This Court by order dated 18.12.2013 dismissed the writ petition in
the following terms:
“This petition seeks direction to award compensation to the petitioner
for medical negligence.
The case of the petitioner is that after giving birth to two male
children, the petitioner underwent Tubectomy operation on
17.04.1993. Still, petitioner conceived the third child. Accordingly,
the petitioner is entitled to compensation to meet the cost of the third
child and to compensate for the mental agony on account of the birth
of the third child.
We have heard learned counsel for the petitioner.
It is well settled that mere failure of the Tubectomy operation could
not be held to be medical negligence entitling the person undergoing
such operation to compensation.
Reference is made to the decision of the Supreme Court in the case of
State of Punjab Vs. Shiv Ram & ors., (2005) 7 SCC 1 and Martin F.
D’Souza Vs. Mohd. Ishfaq, (2009) 3 SCC 1.
Accordingly, this petition is dismissed.”
5. According to the review applicant, this adjudication suffers from
errors apparent on the face of the records, inasmuch as, this Court had left
out of consideration the fact that failure of the tubectomy operation did per
se demonstrate medical negligence of the performing surgeon for which the
State was vicariously liable to pay compensation. This is more so, as in spite
of the notice no counter had been filed by the opposite party. That the
medical negligence involved had resulted in infringement of the review
applicant’s right to life as enshrined under Article 21 of the Constitution of
India has also been emphasized.
6. Learned counsel for the petitioner while emphatically reiterating the
above has placed reliance on the decisions of the Apex Court in State of
Haryana & Ors. Vs. Santra (Smt.), (2000) 5 SCC 182 and that of the
Allahabad High Court in Smt. Shakuntala Sharma & Anr. Vs. State of U.P.
& Ors., AIR 2000 Allahabad 219.
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7. We have carefully analysed the pleaded facts, the documents on
records and the arguments advanced.
8. The instant application being one for review, the scope of scrutiny
essentially is constricted and limited by the parameters recognized in law.
As would be evident from the judgment and order dated 18.12.2013, a
coordinate Bench of this Court did hold that mere failure of the tubectomy
operation could not per se be demonstrative of medical negligence entitling
the person undergoing the same to compensation. This view was sought to
be sustained by referring to the decisions of the Hon’ble apex Court in State
of Punjab Vs. Shiv Ram & ors., (2005) 7 SCC 1; and Martin F. D’Souza Vs.
Mohd. Ishfaq, (2009) 3 SCC 1.
9. Evidently in the facts pleaded in the writ petition and also in the
review application, except stating that the review applicant/writ petitioner
had undergone tubectomy operation on 17.04.1993 and in spite thereof, she
had conceived thereafter, there is no material to establish the medical
negligence on the part of the doctor performing the related surgery.
10. The Hon’ble apex Court, dealing with the aspect of medical
negligence in Jacob Mathew Vs. State of Punjab & Anr., (2005) 6 SCC 1,
had while laying down the guidelines to construe negligence in the context
of medical profession had propounded that simply because a patient has not
responded favourably to a treatment given by the physician or because a
surgery had failed, the doctor cannot be held liable per se by applying the
doctrine of res ipsa loquitor.
11. In State of Punjab Vs. Shiv Ram (supra), the Hon’ble apex Court,
after a dialectical analysis of the facts in the case of State of Haryana Vs.
Santra (supra), as relied upon on behalf of the review applicant, held that the
cause of action for claiming compensation in cases of failed sterilization
operation arises on account of negligence of the surgeon and not on account
of childbirth. It was held, in the contextual facts, in State of Haryana Vs.
Santra (supra) that the lady involved had offered herself for complete
sterilization and not for partial operation and, therefore, both her fallopian
tubes should have been operated upon, but it was found as a matter of fact
that only the right fallopian tube was operated upon and the left fallopian
tube was left untouched and she was issued a certificate that her operation
was successful and she was assured that she would not conceive a child in
future. It was in those facts and circumstances, that the case of medical
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RUKMUNI DAS-V- STATE OF ODISHA [AMITAVA ROY, C.J.]

negligence was held to be proved for which the compensation in tort was
adjudged to be justified.
12. In Martin F. D’Souza (supra), the Hon’ble apex Court, amongst
others, referring to Jacob Mathew (supra) held that a medical practitioner is
not liable to be held negligent simply because things went wrong from
mischance or misadventure or through an error of judgment in choosing one
reasonable course of treatment in preference to another, and he could be
liable only where his conduct fell below that of the standards of a reasonably
competent practitioner in his field. The enunciation in Martin F. D’Souza
(supra) resonated as hereunder:
“40. Simply because a patient has not favourably responded to a
treatment given by a doctor or a surgery has failed, the doctor cannot
be held straightaway liable for medical negligence by applying the
doctrine of res ipsa loquitur. No sensible professional would
intentionally commit an act or omission which would result in harm
or injury to the patient since the professional reputation of the
professional would be at stake. A single failure may cost him dear in
his lapse.”
In the same vein it was held in Bolam Vs. Friern Hospital
Management Committee, (1957) 2 All ER 118, as under:
“The test is the standard of the ordinary skilled man exercising and
professing to have that special skill. A man need not possess the
highest expert skill at the risk of being found negligent. It is well-
established law that it is sufficient if he exercises the ordinary skill of
an ordinary competent man exercising that particular art…. In the
case of a medical man, negligence means failure to act in accordance
with the standards of reasonably competent medical men at the
time… there may be one or more perfectly proper standards; and if a
medical man conforms with one of those proper standards then he is
not negligent.”
The preponderant judicial opinion is thus that medical negligence
cannot be presumed as a matter of routine ipso facto, if the patient does not
respond to the treatment administered or the surgery undergone, in absence
of any proof of failure on the part of the doctor concerned to act in
accordance with the standard of reasonable competent medical man at all
relevant times.
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13. Not only in State of Haryana Vs. Santra (supra) there was an
admission that the sterilization operation was not successful and that the lady
involved was not subjected to complete sterilization, in Smt. Shakuntala
Sharma (supra) as well it was not denied that the operation was unsuccessful.
Therefore, these decisions turn on their own facts and are thus
distinguishable from those as obtain herein.
To reiterate, in the instant case there is neither any admission on the
part of the opposite party nor any proof of medical negligence vis-à-vis the
petitioner as acknowledged in law. Further, to reiterate, the instant is a
proceeding seeking review of a judicial adjudication made on merits.
14. On an overall consideration of all aspects enumerated hereinabove,
we thus see no reason whatsoever to entertain the instant petition and it is
thus dismissed.
Review petition dismissed.

2015 (I) ILR - CUT- 230

AMITAVA ROY, CJ & DR. A. K. RATH, J.

W.P.(C) NO. 9533 OF 2014

PABAN KUMAR SAHU & ORS. ……..Petitioners

.Vrs.

ROURKELA DEVELOPMENT
AUTHORITY & ORS. ……..Opp.Parties

P.I.L. – Before entertaining the PIL, Courts should ensure that it
is aimed at redressal of genuine public harm and there is no personal
gain, private or oblique motive behind it.

In this case it is evident from the writ petition that the petitioners
have substantial interest over the land in question so the litigation
cannot be termed as PIL which is otherwise an abuse of the process of
the Court – The writ petition is dismissed with cost of Rs.1000/-.
(Paras 15, 16)