The High Court · 2023
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI (Letters Patent Appellate Jurisdiction) L.P.A No. 148 of 2020 ------- M/s Shivam Construction, Julu Park, Hazaribagh through its partner namely Sujit Kumar Mehta, aged about 45 years, s/o Sri Raj Kishore Mehta, r/o-Lupung, PO & PS-Katkamsandi, District- … Appellant Hazaribagh Versus 1. Jharkhand Police Housing Corporation Limited, Line Tank Road, PO, PS & District-Ranchi 2. The Managing Director, Jharkhand Police Housing Corporation Limited, Ranchi, Line Tank Road, PO, PS & District-Ranchi 3. The Chief Engineer, Jharkhand Police Housing Corporation Limited, Ranchi, Line Tank Road, PO, PS & District-Ranchi 4. The Executive Engineer, Jharkhand Police Housing Corporation Limited, PO+PS-Hazaribagh, Hazaribagh Division, Hazaribagh 5. The State of Jharkhand ... Respondents CORAM: HON’BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY For the Appellant For the Respondents
Legal Reasoning
: Mr. Pallav Kumar, Advocate : Mr. Amrendra Pradhan, Advocate -------- 1st September 2023
Decision
O R D E R I.A No. 5556 of 2020 This interlocutory application has been filed seeking condonation of delay of 55 days in filing the present Letters Patent Appeal. 2. In this application the appellant has stated as under: “3. That it is submitted that the appellant could not arrange for the expenses of filing the petition and fees of the counsel on time due to their financial crisis. 4. That it is submitted that ultimately the appellant managed to take some financial help from the relatives and thereafter contacted the counsel of the appellant and managed to take certified copies of the entire judgment and others papers. 5. That it is submitted that after much efforts the appellant thereafter came to Ranchi and contacted his counsel and then the present appeal was filed on 28.02.2020. Thus there is a delay of 55 days in filing the instant appeal. 6. That the delay of 55 days in filing the present petition is neither deliberate nor intentional.” 3. Having considered the cause shown by the appellant, we are inclined to condone the delay of 55 days in filing the present Letters Patent Appeal and, accordingly, I.A No. 5556 of 2020 is 2 L.P.A No. 148 of 2020 allowed. L.P.A No. 148 of 2020 4. M/s Shivam Construction was aggrieved by termination of the contract and forfeiture of the security deposit with a further order of debarment issued by the Chief Engineer of the Jharkhand Police Housing Corporation Limited. The writ Court found substance in the challenge laid by the company to the order of debarment which was in effect for an indefinite period, and interfered with that part of the order dated 7th January 2009. However, the said order has been affirmed by the writ Court in respect of termination of the contract and forfeiture of the security deposit. 5. The writ Court has held as under: “11. It may thus be construed from the aforesaid judgments that when a contract is entered between the two private parties, in case of any breach of contract by one party, the other party has every right to blacklist the defaulter and such right is unqualified. However, in a situation where an order of blacklisting is passed by the State or its instrumentalities, such order is within the realm of the power of judicial review of the writ court and the same is required to be tested in the touchstone of the principles of natural justice, doctrine of proportionality, reasonableness and fairness. The order of blacklisting has the effect of depriving a person of equality of opportunity in the matter of public contract. Blacklisting has the effect of preventing a person from the privilege and advantage of entering into lawful relationship with the government/government agencies for the purpose of gains. Thus, prior to taking such a harsh decision, the person concerned is required to be given an opportunity to represent his case before he is put on blacklist. On this issue, the show- cause notice is not a mere formality, rather the same is mandatory specifying the grounds which necessitate the proposed action so that the person aggrieved may put forth his defence properly. 12. On perusal of the record, it is evident that the order of blacklisting/debarment of the petitioner has been passed in a routine manner in consequence of passing the order of termination of agreement. No specific reason has been assigned in the impugned letter on the issue of blacklisting of the petitioner. It is also evident from the record that no separate show-cause notice was issued to the petitioner in this regard so as to enable it to properly defend itself. 13. Under the aforesaid facts and circumstance, the impugned order as contained in letter no. C.E/657/19 dated 07.01.2009 issued by the respondent no. 3 – Chief Engineer, Jharkhand Police Housing Corporation Limited is quashed to the extent of blacklisting/debarment of the petitioner. 14. The writ petition is partly allowed to the above extent.” 6. Aggrieved thereby, the company has filed the present Letters Patent Appeal primarily on the ground that the writ Court did not consider its stand that there was a fundamental breach of the terms of the contract committed by the Jharkhand Police Housing Corporation Limited inasmuch as sanctioned map for the subject works was not provided within the stipulated period for completion of the contract. 7. A writ Court exercising powers under Article 226 of the 3 L.P.A No. 148 of 2020 Constitution of India is not denuded of its powers to examine the allegations of illegality, perversity, malafide etc. and wherever it is demonstrated before the Court that there was want of bonafide and demonstrable unfairness in action on the part of the employer the writ Court shall exercise its discretionary powers to remedy the illegality perpetuated by such acts of the State instrumentality. The stand taken by the company is corroborated from the communications from the Jharkhand Police Housing Corporation Limited. It is admitted on record that work could not be started even after 21st July 2008 by which time the contract work was to be completed. In the letter dated 29th September 2008 the Executive Engineer has recorded that the work was not even started by that time. On the other hand, the same officers seem to have written a letter dated 17th September 2008 indicating that the work progress was not satisfactory. In the paragraph no. 10 of its counter affidavit, the Jharkhand Police Housing Corporation Limited has made a strange statement that the company did not approach the Corporation for the sanctioned map. But in the same breath, it is stated that on 9th September 2008 and 6th October 2008 the company and its representative were informed to collect the sanctioned map. In our opinion, this statement made on oath by the Jharkhand Police Housing Corporation Limited tells the real story behind non-completion of the contract work. 8. The writ Court has however drawn an adverse inference against the company for the reason that no rejoinder affidavit was filed by the company controverting the statement made in paragraph no. 10 of the counter-affidavit. As we have indicated, the statements made in paragraph no.10 of the counter-affidavit establish beyond doubt that by 9th September 2008 sanctioned map was not ready or was not provided to the company. The aforesaid being the admitted facts, we find that the order contained in the letter dated 7th January 2009 was illegal and, accordingly, quashed. 9. However, we are not inclined to deal with the other prayers made by the company in the writ petition particularly for the reason that by efflux of time the tender which was re-issued for the remaining work would have been completed. Therefore, the writ 4 L.P.A No. 148 of 2020 petition is allowed to the extent of forfeiture of the security deposit which shall be refunded to the company within a period of four weeks. 10. W.P.(C) No. 4191 of 2009 is allowed in the aforesaid terms. 11. Consequently, L.P.A No. 148 of 2020 is allowed to the aforesaid extent. (Shree Chandrashekhar, J.) (Anubha Rawat Choudhary, J.) Jharkhand High Court, Ranchi Dated: 1st September 2023 Amit N.A.F.R