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2006 DIGILAW 1045 (PAT)

Rai Construction v. State Of Bihar

2006-11-10

NAVANITI PRASAD SINGH

body2006
Judgment 1. Heard. 2. The present writ application has been filed against the order dated 4.3.2006 (Annexure-1) issued under the signature of Special Officer-cum-Deputy Secretary, Road Construction Department, Govt, of Bihar, Patna, by which the petitioner has been blacklisted as a contractor, the effect of which is that the petitioner will not be allowed to participate in Government tender for a period of three years from the date of the issuance of the order. 3. A counter affidavit has been filed and with the consent of the parties this writ application is being disposed of at the admission stage itself. 4. The petitioner had undertaken certain works under the State Government. The State appears to have some grievance with regard to the manner in which the works were executed. The State has framed Bihar Contractor Enlistment Rules, 1996 which, inter alia, provides for enlisting/registration of a contractor who would then be eligible for being a Government contractor. The rule apart from providing for registration provides for taking penal action against erring contractor. Those provisions are to be found with reference to rules 13 and 14. It is, inter alia, provided that the action to blacklist a contractdr would be taken by the same authority, who have the power to register the said contractor. 5. In the present case the Secretary to the Engineer-in-Chief (Technical), Road Construction Department issued a show cause notice to the petitioner as to why the petitioner should not be blacklisted. It is not said that the said show cause was being issued under order of any authority. The petitioner, however, filed his show cause to the said Ramdhyam Ram, being the Technical Secretary to the Engineer-in-Chief. Thereafter the petitioner did not hear anything in this regard till he was served with an order of the Special Officer-cum-Deputy Secretary, Road Construction Department, Govt, of Bihar, Patna, blacklisting the petitioner and rejecting the show cause as filed by the petitioner. 6. A very short issue has been raised by the petitioner. The petitioner submits that under the Enlistment Rule, the authority to blacklist has been specified under Rule 14. The authority, who has the power of registration in the present case, the registration is to be granted by Engineer-in-Chief alone in consultation with at least three other Chief Engineers. 6. A very short issue has been raised by the petitioner. The petitioner submits that under the Enlistment Rule, the authority to blacklist has been specified under Rule 14. The authority, who has the power of registration in the present case, the registration is to be granted by Engineer-in-Chief alone in consultation with at least three other Chief Engineers. It would thus be seen it is this body, that is, the designated authority to grant registration and thus to take action. The issue being raised in the present writ is that whether the power is conferred on an authority to take action of blacklisting. Firstly, it is that authority who must assume jurisdiction in the matter. 7. Having assumed jurisdiction it is that authority that has to issue the notice. Thereafter the show cause has to be considered by that authority and then a decision has to be taken by that authority alone. Any interference or deviation from those procedure would be violative of principle of natural justice. 8. In the present case, it would be seen from the facts stated above, the authority, who issued the show cause was different from the person who apparently considered the same and the authority who passed the order was altogether a third authority. This fact was not disputed in the counter affidavit. 9. Even in case of institutional decision if authorities are specified for the purpose like this under Enlistment Rule, the decision has to be taken in accordance with the rule. The authorities themselves having framed the rule cannot act otherwise than in the rule. It is well settled principle of law where a procedure has been prescribed to perform an act in a particular manner by a particular authority, then act has to be performed in that manner alone by the specified authority and all other modes are impliedly prohibited. 10. In that view of the matter I have no option but to hold that the entire exercise as carried out by the respondents blacklisting the petitioner is futile exercise and exercised wholly without jurisdiction. The proceedings and the impugned order is thus quashed. 11. This writ application is allowed.