p. 1 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.27069 of 2024 Jagat Jyoti Nayak …. Petitioner Mr.Anjan Kumar Jena, Advocate -versus- 1.State of Odisha 2.The Chief Construction Engineer, Deo Irrigation Project, Karanjia 3.The Superintending Engineer, Deo Canal Division, Karanjia …. Opposite Parties Ms.S.Pattnaik, AGA CORAM: HON’BLE THE CHIEF JUSTICE HON’BLE MS. JUSTICE SAVITRI RATHO Order No. ORDER 02.01.2025 02. This matter is taken up through Hybrid mode. 2. In the present writ application, the petitioner, who is a contractor has put to challenge an order dated 02.09.2024 passed by the Chief Construction Engineer, Deo Irrigation Project, Karanjia whereby he has been black-listed for three years purportedly in terms of the provision under Appendix-XXXIV of OPWD Code Vol-II, for non-submission of Additional Performance Security (in short “APS”) within stipulated period. Consequently, the petitioner has been debarred from participation in bidding for three years from the date of issue of the order as per Clause No.22.3 of Appendix-IX (A) of OPWD Code Vol-II and DTCN due to non-execution of the agreement after finalization of the tender within the due date. 3. The petitioner is a B-Class Diploma Engineering Contractor who had participated in a bidding process pursuant to e-procurement notice dated 06.12.2023. It is the case of the p. 2 opposite parties that for the work in question, i.e., “Excavation and Construction of Left Main Distributary from Rd 15460m to RD 16750m including Service Road and Protection wall of Deo Irrigation Project”, twenty nine bidders had participated including the petitioner. The petitioner was found to be L-1 and was asked to deposit the APS amount to the tune of Rs.39,26,600/- within seven days from the date of issue of the letter of acceptance. The petitioner did not comply with the said requirement. Accordingly, applying Clause-81 of the bid document of DTCN, the opposite parties decided to cancel the petitioner’s bid and to forfeit the security deposit. Further, an action of blacklisting has been taken in terms of the said clause-81. 4. It is however an admitted fact that before issuance of the impugned order of black-listing the petitioner, no opportunity was given to him to put forth his explanation or show cause against the proposed action of black-listing. 5. We have carefully perused Clause-81 of the bid documents, which reads thus: “81. Additional Performance Security shall be deposited by the Bidder when the bid amount is less than the estimated cost put to tender. In such an event, only the successful bidder has quoted less bid price/rates than the estimated cost put to tender shall have to deposit the Additional Performance Security (APS) in the following manner as per Govt. of Odisha Works Department OM No:4559/W, dated 05/04/2021. Page 3 of 4 Sl. No. Range of Difference between the estimated cost put to tender and Bid Amount APS to be Deposited by the successful bidder 1 Below 5% NO APS 2 From 5% and above and below 10% 50% of (Difference between the estimated cost put to tender and Bid Amount) 3. From 10% and above 150% of (Difference between the estimated cost put to tender and Bid Amount) within seven days of issue of letter of acceptance (LoA) by the concerned Superintending Engineer (By e-mail) in shape of Kissan Vikash Patra/Post Office Savings Bank Account/National Savings Certificate/Post Office Time Deposit Account duly pledged in favour of the Superintending Engineer, Deo Canal Division, Karanjia/Bank Guarantee From any Nationalized/Schedule bank of India in favour of the Superintending Engineer, Deo Canal Division, Karanjia as mentioned under DTCN, otherwise the bid shall be cancelled and the security deposit shall be forfeited. Further, proceeding for blacklisting shall be initiated against the bidder.” Emphasis supplied. 6. It is apparent from a bare reading of Clause-81 of the bid document that the blacklisting of a contractor is not an automatic consequence of a failure on the part of a bidder to deposit the APS amount within the stipulated time. It provides that if a bidder fails to deposit the APS amount within stipulated time, the bid shall be cancelled and the security deposits forfeited and, the competent p. 4 authority shall initiate a proceeding for blacklisting such bidder(s) in accordance with law, apparently after giving the bidder an opportunity of hearing. 7. In our considered view, the impugned order dated 02.09.2024 passed by the Chief Construction Engineer, Deo Irrigation Project, Karanjia blacklisting the petitioner, deserves interference on the sole ground of violation of principle of natural justice. 8. Accordingly, the order dated 02.09.2024 passed by the Chief Construction Engineer, Deo Irrigation Project, Karanjia (Annexure-6) is set aside. 9. The writ application is accordingly allowed. 10. The opposite parties, shall however, be at liberty to take a decision afresh on the point of blacklisting, after giving the petitioner a due opportunity to show cause. (Chakradhari Sharan Singh) Chief Justice (Savitri Ratho) Judge Bichi Designation: Secretary