Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.21714 of 2012 ====================================================== 1. Raj Prem Construction Company Private Limited Through The Director Predeep Kumar S/O Late Raj Kishore R/O Mohalla-Sri Krishna Nagar, P.O.+P.S.-Motihari, Distt-East Champaran (Bihar) .... .... Petitioner/s Versus 1. The State Of Bihar Through The Principal Secretary, Department Of Water Resources , Government Of Bihar, Patna 2. The Principal Secretary, Department Of Water Resources , Government Of Bihar, Patna 3. The Deputy Secretary, Department Of Water Resources , Governement Of Bihar, Patna 4. The Under Secretary, Department Of Water Resources , Government Of Bihar, Patna 5. The Engineer-In-Chief(Central), Department Of Water Resources , Government Of Bihar, Patna 6. The Chief Engineer, Department Of Water Resources , Balmikinagar, Distt-East Champaran 7. The Executive Engineer, Department Of Water Resources, Champaran Division, Motihari, Distt-East Champaran .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Anil Kumar Sinha Mr. Prashant Kumar For the Respondent/s : Mr. Harendra Pd. Singh GA8 ====================================================== CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL ORAL ORDER 4 27-06-2013 Heard Mr. Anil Kumar Sinha for the petitioner and learned A.C. to G.A. 8 for the State. The parties have exchanged their pleadings. Kishore Constructions Company (for short the “KCC”) was assigned a contract job for putting of boulders in the Gandak River on the left embankment between 32nd chain to 35.5. chain on the 54th Mile of the river. The Company/Contractor completed the
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Patna High Court CWJC No.21714 of 2012 (4) dt.27-06-2013 2 work on 16.6.2001. The said company later got re-registered in the name of Raj Prem Construction Company Pvt. Ltd. (the petitioner company). Entire payment of the bills except the refund of the security deposit was made by the respondent State. At this juncture, a show cause notice was issued to the petitioner on 3.7.2002 under the provisions of Bihar Enlistment of Contractor Rules 1992 calling upon the petitioner company to submit cause against the proposed blacklisting of the company. The notice has been placed on record as Annexure-A to the supplementary counter affidavit filed on behalf of the respondents. The petitioner replied to the notice on 27.7.2002 (Annexure-7 to the rejoinder). The comment/report on the cause shown by the petitioner is also on record as Annexure-8 to the rejoinder filed by the petitioner. The respondent Engineer-in- Chief (Central) by an order contained in Memo No. 5373 dated 28.8.2011 (Annexure-1) passed the final order whereby the petitioner company was blacklisted. From perusal of the said order, it appears that the blacklisting was for indefinite period of time. Aggrieved by the aforesaid order passed by the respondent Engineer-in-Chief, the petitioner preferred an appeal in terms of Rule 11 (kha) of Bihar Contractor Registration Rules, 2007 (for short “ the Rules”) before the Commissioner-cum-Secretary of the Water Resources Department, Government of Bihar. Let it be Patna High Court CWJC No.21714 of 2012 (4) dt.27-06-2013 3 recorded that before filing such appeal, the petitioner had already preferred the present writ petition. During the pendency of this application, the respondent Appellate Authority passed the appellate order on 17.1.2013 (Annexure-6 to the amendment petition). The petitioner filed the amendment petition seeking leave of the Court to challenge the legality/sustainability of the appellate order. Learned counsel for the petitioner submits that the grounds set out in the notice are not the grounds on which the petitioner company can be blacklisted. It has been submitted that the breach in the canal was in the down stream whereas the petitioner firm was allowed to execute work in the upper stream of the canal. The allegation with regard to the non-use of boulders of specified dimension is also not correct since no enquiry, as such, was ever carried out. On the contrary, during execution of work, the Engineer at the site had approved the same. He relies in this regard on the comment which was prepared by the respondent Executive Engineer enabling the competent authority to pass the final order. The said comment allegation wise has been enclosed along with the rejoinder as also the counter affidavit of the
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respondent State. Learned counsel further highlights that inordinate delay in taking action in the present matter would also render the order not sustainable in law. He submits that the work was Patna High Court CWJC No.21714 of 2012 (4) dt.27-06-2013 4 completed within time on 16.6.2001 whereafter the payment of bills was made to the petitioner. Only the security deposit was to be refunded. The alleged breach in the canal had taken place after the completion of work by the petitioner in the upper stream in August, 2001. The show cause notice was issued on 3.7.2002 which was replied to by the petitioner. It took more than 9 years for the respondents to pass the impugned order on 28.8.2011 which, according to the petitioner, de hors the report/comment submitted by the Engineer In-charge of the Constructions. Assailing the appellate order, it has been submitted that the same is wholly cryptic one inasmuch as no reason has been assigned for rejection of the appeal. Learned counsel in this regard draws attention of the Court to the memo of appeal which has been enclosed as Annexure- 9 to the rejoinder. He submits that diverse issues of fact and law were involved. The appellate order apparently does not deal with those issues. In fact, the order is completely non-reasoned. It has been submitted that a Government Authority exercising a quasi judicial function ought to have assigned reasons therefor. In the case at hand, the same is completely absent. The order, therefore, verges on being completely illegal, arbitrary and not sustainable in law. It reflects complete non-application of mind. Learned counsel for the State, on the other hand, Patna High Court CWJC No.21714 of 2012 (4) dt.27-06-2013 5 supported the impugned order. He submits that there is no procedural defect in the decision making process inasmuch as the petitioner was put on notice before passing the final order as is required under the relevant Rule. Adverting to the submissions of the petitioner in challenging the appellate order, it has been submitted that the order passed by the authority must be in the file. He, however, admits that the reasoned order, if any, passed by the appellate authority was not communicated to the petitioner. The communication was only with regard to the rejection of the appeal. I have heard the parties and perused the materials on record. In my view, the present application is fit to be allowed on the second submission made by the petitioner in assailing the appellate order passed by the respondent authority on the appeal preferred by the petitioner company in terms of Rule 11 (kha) of the 2007 Rules. Enlistment of the petitioner firm in blacklist has a serious civil consequence. The petitioner shall be debarred from participating in any future contract. This may also infringe his fundamental right as enshrined under Article 19(1)(g) of the Constitution of India. The law in this regard is now well settled. Any order having civil consequence(s) be it administrative or quasi judicial has to be a reasoned order. Reason is the soul of the order. In passing the appellate order under the relevant Rule the Authority Patna High Court CWJC No.21714 of 2012 (4) dt.27-06-2013 6 would be exercising a quasi judicial function. The counsel for the petitioner has taken the Court through the contents of the memo of appeal as well as the comments/report submitted by the authority. It has been highlighted at the Bar that the breach in the canal was not in the work assigned to and executed by the petitioner company. The petitioner was assigned job of remaintment slop in the upper stream of the canal whereas from the materials on record it appears that the breach in the canal was in the lower stream. It has also been submitted that the petitioner was not called upon to show cause on this point. The appellate authority has not dealt with these issues/facts. Having regard to the aforesaid, this Court is satisfied that the order passed by the Appellate Authority merits to be interfered with and quashed and the matter be remitted to the respondent Appellate Authority to pass a fresh order in accordance with law. Learned counsel for the petitioner submits that the petitioner has already suffered enormously since the passing of the impugned order on 28.8.2011 whereafter the petitioner firm was debarred from participating in any tender process. This Court should, therefore, direct the Appellate Authority to dispose of the appeal within a time frame as continued enlistment of the petitioner Patna High Court CWJC No.21714 of 2012 (4) dt.27-06-2013 7 company in the blacklist would not be desirable. Regard being had to the above, this Court disposes of the application by the following order: The order passed by the Appellate Authority and communicated to the petitioner as contained in letter bearing Memo No. 267 dated 17.1.2013 (Annexure--6 to the amendment petition) is quashed and set aside and a liberty is granted to the respondent Appellate Authority to pass a fresh order in accordance with law within five weeks from the date of receipt/production of a copy of this order before the Appellate Authority. In the event of default in passing the fresh order on the appeal of the petitioner within the aforesaid time, the effect of the order placing the petitioner firm in the blacklist contained in Memo No. 5373 dated 28.8.2011 (Annexure-1) shall thereafter become inoperative and will remain so until a fresh order on the appeal is passed and communicated to the petitioner. Pankaj/- (Kishore Kumar Mandal, J)