High Court
Case Details
Neutral Citation No. - 2023:AHC:124931-DB Court No. - 64 Case :- WRIT - C No. - 19848 of 2023 Petitioner :- M/S Bvg India Ltd. Respondent :- New Okhla Industrial Development Authority Counsel for Petitioner :- Syed Imran Ibrahim,Gaurav Tripathi Counsel for Respondent :- Kaushalendra Nath Singh Hon'ble Ajit Kumar,J. Hon'ble Vikas Budhwar,J.
Legal Reasoning
1. Heard Sri Rakesh Pande, learned Senior Advocate assisted by Sri Taran Bhosle along with Gaurav Tripathi, learned Advocate appearing for the petitioner and Sri Amit Saxena, learned Senior Advocate assisted by Sri Ankur Agarwal, learned counsel for the New Okhla Industrial Development Authority. 2. At the very outset learned counsel for the petitioner submits that the petitioner is confining its writ petition to the extent of order of blacklisting, impugned in the present petition. 3. It is argued by learned Advocate that no cogent and convincing reason justified enough has been assigned by the authority for arriving at a conclusion that may have compelled the authority to take decision to blacklist the Firm. It is argued that previously two show cause notices were issued to which petitioner had submitted reply and yet those replies have not been considered at all in the order impugned. It is further argued on behalf of the petitioner that even after the show cause notices were issued to the petitioner, the petitioner Firm was made to continue to work under the contract reached with NOIDA. However, suddenly a show cause notice was issued for imposing penalty after the work was not found to the satisfaction of the authority and the proper labour force was not employed to carryout the requisite task as was required under the notice. It is also argued on behalf of the petitioner that before passing the order of blacklisting no opportunity of personal hearing was afforded to the petitioner Firm. 4. Learned Senior Advocate appearing for the contesting respondent has however, argued that the petitioner has not been able to carry out the work as per the terms of the contract and it has been found that the roads and drains were in a bad condition. The proper cleanliness exercise was not carried out that led the authority to take appropriate action as per the terms of the contract. 5. Having heard learned counsel for the respective parties, we found that the order of blacklisting that has been impugned here in this petition, dated 25.05.2023 though refers non performance of work under contract to the effect that after the inspection it was found that the roads that were assigned for maintenance by way of cleanliness exercise under the contract were not found to be properly maintained as condition was bad and garbage was found to be either scattered or collected on road itself despite several warnings issued by the authorities and despite a notice of penalty, no improvement was made that led to the passing of order of blacklisting, referring to the clauses that were contained in the contract but in our considered view this finding cannot be said to be well informed one being not based upon any material referred to in the order. It transpires that the authority had though even proceeded earlier against the petitioner with several notices including two show cause notices and notice for penalty but permitted petitioner to continue its work as per the contract. No statistics has been disclosed in the order impugned so as to decipher from it that the work was not upto mark. We find impugned order contains list of notices issued in the past including last warning letters but nothing has been stated as to whether these notices were ever replied to. No details regarding specific roads/ passages were detailed out so as to be suggestive of the charge that no mechanical/ manual sweeping work was done. The recitals in the order do not disclose as to whether any opportunity of personal hearing was given in the mater to the petitioner by fixing dates. 6. In the circumstances, therefore, in our considered view the authority was required to consider the work already carried out and to deal with the same in detail and then to pass an order after returning its finding that reply submitted by the petitioner was not to the satisfaction of the authority. 7. We are of the further view that as far as possible opportunity of personal hearing should have also been afforded to the petitioner while the authority was going to consider blacklisting of the petitioner Firm. 8. In our above view, we find support in the judgment of Supreme Court in the case of Raghunath Thakur v.State of Bihar & Ors, (1989) 1 SCC 229. The Court had held that "Eeen if the rules do not express so, it is an elementary principle of natural justice that parties affected by any order should have right of being heard and making representations against the order. In that view of the matter, the last portion of the order insofar as it directs blacklisting of the Appellant in respect of future contracts, cannot be sustained in law. In the premises, that portion of the order directing that the Appellant be placed in the blacklist in respect of future contracts under the Collector is set aside." and the Court then proceeded to issue further direction "This order will, however, not prevent the State Government or the appropriate authorities from taking any future steps for blacklisting the Appellant if the Government is so entitled to do in accordance with law i.e. after giving the Appellant due notice and an opportunity of making representation. After hearing the Appellant, the State Government will be at liberty to pass any order in accordance with law indicating the reasons therefor." (Emphasis added) 9. Learned counsel for the contesting respondent at this stage submits that given an opportunity, the authority may pass order afresh. He submits that he will have no objection in the event matter is remitted to the authority for passing order afresh in accordance with law. 10. In view of the above, we hereby quash the order impugned dated 25.05.2023 passed by the authority in so far as it relates to blacklisting of the petitioner Firm. We provide an opportunity to the petitioner to file a detailed reply/ objection afresh to the show cause notices issued in the past, more especially the last one, within a period of three weeks from today and in the event any such objection is filed, the authority will fix a date within two weeks to give an opportunity of hearing to the petitioner and thereafter, will be passing order afresh within next three weeks' time. In so far as termination of contract is concerned, the petitioner shall have opportunity to avail the remedy as per the terms of the contract. 11. It is made clear that if the petitioner fails to comply with the above order and does not cooperate in the disposal of the matter, as directed herein above, it will be open for the authority to pass order in accordance with law. 12. Needless to add, the order to be passed by the authority shall be reasoned and speaking one.
Decision
13. With the aforesaid observations and directions, this petition stands disposed of. Order Date :- 7.6.2023/IrfanUddin (Vikas Budhwar,J.) (Ajit Kumar,J.) Digitally signed by :- IRFAN UDDIN SIDDIKI High Court of Judicature at Allahabad