The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 24051 of 2023 M/s. Sai Sambhu Infrastructure Pvt. Ltd. …. Petitioner Mr. Prabodh Ch. Nayak, Advocate -versus- State of Odisha and Another …. Opposite Parties Mr. P.P. Mohanty, Addl. Govt. Advocate CORAM: ACTING CHIEF JUSTICE DR. B.R. SARANGI MR. JUSTICE MURAHARI SRI RAMAN Order No.
Decision
ORDER 05.01.2024 04. 1. Heard Mr. P.C. Nayak, learned counsel appearing for the petitioner and Mr. P.P. Mohanty, learned Additional Government Advocate for the State-opposite parties. 2. The petitioner has filed this writ petition challenging the blacklisting order dated 28.04.2023 (Annexure-1) for a period of two years with effect from 24.04.2023 as per clause 4.2 of Section 4 of RFP. 3. Mr. P.C. Nayak, learned counsel appearing for the petitioner contended that the order of blacklisting has been passed on the basis of the clarification issued and as such, the same has been done without giving any opportunity of hearing to the petitioner. Thereby, it is contended that the same cannot be sustained in the Page 1 of 6 eye of law. In support of the contention, Mr. Nayak, learned counsel relied upon the judgment of this Court in Ecometrix Consultants Pvt. Ltd. v. Bhubaneswar Development Authority and Others, 2023(II) OLR 616. 4. Mr. P.P. Mohanty, learned Additional Government Advocate states that the clarification was sought for from the petitioner vide letter dated 14.02.2023 on the basis of the observations made by the Technical Evaluation Committee and the petitioner was called upon to furnish necessary clarification within a period of five days. Since no reply to such clarification was submitted by the petitioner, again vide letter dated 02.03.2023, he was given opportunity to explain “why action as deemed fit in pursuant to RFP will not be initiated against you” within a period of five days. Therefore, the contentions raised by the petitioner that no opportunity of hearing was given to him cannot be sustained. 5. Having heard learned counsel for the parties and perused the materials available on records, it appears that much reliance has been placed on two documents i.e. letter dated 14.02.2023 and 02.03.2023 to substantiate the fact that due opportunity was given to the petitioner for blacklisting. 6. Letter dated 14.02.2023 reads as follows: “Sub: Tender for the Work-“Construction of proposed Bypass at Reamal on NH-53 in the state of Odisha on EPC Mode”. Page 2 of 6 Ref: Bid Ref No.-26 CE NH of 2022-23 Sir, Please refer to the bid under reference and the bid documents submitted for the aforesaid technical evaluation committee work. The observed that, a. The self-certification mentioning the local content percentage as per clause. 1.2.10 of RFP has not been submitted. b. A representation has been received on dated 30.01.2023 in the o/O CE NHs Odisha stating that following ongoing works have not been shown in B value (existing commitments) of Annexure-VI in your technical bid. Improvement to Nudurpada-Kaliahat road i. from Km 30 to Km 40 under DMF. ii. Construction of HL over Satajuria nalah at Km 26/950 under state plan. iii. Construction of HL over river Fapodia art Km 3/810 under state plan. Improvement to road and CD works under in iv. PMGSY pkg No. OR-09-177/PMGSY-III district of Dhenkanal. Improvement to road and CD works under in v. PMGSY pkg No. OR-09-182/PMGSY-III district of Dhenkanal. vi. Development of road from Paschimeswar temple to Santhapada bridge nearby bank of Bramhani River. Page 3 of 6 it is requested Hence, to furnish necessary clarification on the aforementioned observations within 5 days without fail otherwise action will be taken as deemed fit. Yours faithfully Chief Engineer, NHs, Odisha” 7. So far as letter dated 02.03.2023 is concerned, it reads as follows: “Sub: Tender for the Work-“Construction of proposed Bypass at Reamal on NH-53 in the state of Odisha on EPC Mode”. Ref: 1. Bid Ref No.-26 CE NH of 2022-23 2. T.O Letter No. 1732 dated 14.02.2023 Sir, Please refer to the bid under reference and the bid documents submitted for the aforesaid work. 2. In this regard, it was requested to furnish clarification towards non submission of 06 works under on-going works in B value (existing commitments) of Annexure-VI in the technical bid vide T.O letter u/r-2. 3. However, no reply/clarification has been submitted by you to this office within the scheduled time frame. As such, it may be explained “why action as deemed fit in pursuant to RFP will not be initiated against you” within 5 days from the issue of this letter. Yours faithfully Chief Engineer, NHs, Odisha” Page 4 of 6 8. On perusal of the aforementioned letters, it is made clear that the Technical Evaluation Committee sought for clarification on certain aspects on 14.02.2023 to which the petitioner did not respond. On 02.03.2023 the same has been reiterated. Nothing has been placed on record to indicate that before blacklisting the petitioner, he has been given opportunity of hearing. Mr. P.P. Mohanty, learned AGA in course of hearing very fairly stated that though the clarification was sought for by the authority vide letters dated 14.02.2023 and 02.03.2023 as mentioned above, before blacklisting the petitioner, opportunity of hearing has not been given to him. Therefore, the impugned order so passed by the authority cannot be sustained. As such, in view of the judgment of this Court in Ecometrix Consultants Pvt. Ltd. (supra), this Court has already considered the similar aspect relying upon the judgment of the apex Court in Vetinda Pharmaceuticals Limited v. State of Uttar Pradesh (2021) 1 SCC 804 and made it clear that the service of notice to show cause is essential before blacklisting the contractor. The same having been absent in the present case, the impugned order of blacklisting and banning the petitioner for a period of two years cannot be sustained. 9. In view of such position, the order of blacklisting dated 28.04.2023 (Annexure-1) passed by Opposite Party No.2 cannot be sustained and, accordingly, the same is quashed. Consequently, the matter is remitted to the authority concerned to proceed in accordance with law, if they are so advised. Page 5 of 6 10. With the above observation and direction, the writ petition stands disposed of. 11. An urgent certified copy of this order be issued as per rules. ACTING CHIEF JUSTICE (DR. B.R. SARANGI) SK Jena/Secy. (M.S. RAMAN) JUDGE Signature Not Verified Digitally Signed Signed by: SANJAY KUMAR JENA Designation: SECRETARY Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 09-Jan-2024 15:24:45 Page 6 of 6