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2007 DIGILAW 60 (PAT)

Kaka & Company v. State Of Bihar

2007-01-09

NAVANITI PRASAD SINGH

body2007
Judgment 1. The present writ application has been filed by the petitioner for quashing the order of the State of Bihar dated 17.1.2006 (Annexure-4) by which he has been intimated that as the Water Resources Department, Government of Jharkhand by its order dated 24.11.2003 had blacklisted the petitioner, the licence of the petitioner as a registered contractor with the Government of Bihar could not be renewed. The petitioner has consequentially then challenged the order of the Water Resources Department, Government of Jharkhand dated 24.11.2003 (Annexure-5) on the ground that the said order blacklisting the petitioner was issued without any prior notice in this regard and was not communicated to the petitioner. It is further submitted that the said order (Annexure-5) being a non-speaking order was non est in eye of law and could not form the basis for any action to be taken by the Bihar State Government. 2. Notices were issued to the State of Jharkhand who was made a party to this application. State of Jharkhand has appeared and filed its counter affidavit. On behalf of State of Jharkhand, it is stated that by Memo No. 2370 dated 24.5.02, a show cause notice was issued to the petitioner pointing out that certain papers that he filed alongwith his tender application appeared to be forged and the petitioner was required to show cause as to why necessary action be not taken in this regard. This, it is submitted, was sufficient compliance of principles of natural justice and was an effective show cause notice (Annexure-6). A preliminary objection has been raised as to the maintainability of the writ application before this Court on the ground that no part of cause of action has arisen within the jurisdiction of this Court with regard to the second prayer that is setting aside the order blacklisting the petitioner and, as such, in terms of Article 226(2) of the Constitution of India, the writ application is not maintainable in that regards. 3. The petitioner has stated that in response to the show cause notice aforesaid (Annexure-6), he had filed his reply denying having filed any tender much less as noticed. 3. The petitioner has stated that in response to the show cause notice aforesaid (Annexure-6), he had filed his reply denying having filed any tender much less as noticed. It is specifically stated in the writ application and in the rejoinder that the order blacklisting the petitioner was not communicated to the petitioner because the petitioner had been given contracts tracts by the State of Bihar on several occasions subsequent to 2003 and at no point of time, any Department raised this objection. For the first time, objection was now raised in the year 2006 when the question of renewal of registration came up. 4. Coming to the preliminary objection as to the maintainability of the writ application, the counsel for the State of Jharkhand submits that though the writ petition may be maintainable as against the State of Bihar, it is not maintainable in this Court as against the State of Jharkhand and the relief as prayed for in that regard cannot be granted by this Court. In this case, I may refer to Article 226(2) of the Constitution of India: "The power conferred by clause (1) to issue directions, orders or writs to any Government authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, not with standing that the seat of such Government or authority or the residence of Such person is not within those territories." 5. In the present case, notwithstanding the order of State of Jharkhand passed in the year 2003, the petitioner was not being restricted from any work in the State of Bihar. What aggrieved the petitioner was the action of the State of Bihar in the year 2006 by which referring to the order of the State of Jharkhand, his renewal of registration in the State of Bihar has been refused. Petitioner, therefore, makes a grievance primarily against the State of Bihar and that gives him the cause of action to move this Court as that cause of action is dependent on the action taken by the State of Jharkhand. The two have been challenged together. Therefore, it cannot be said that no part of cause of action arose within the jurisdiction of this Court. The two have been challenged together. Therefore, it cannot be said that no part of cause of action arose within the jurisdiction of this Court. The cause of action was partly in the State of Bihar which initiated the action and was dependent of an action of State of Jharkhand which has been compendiously challenged. A writ application is, thus, maintainable in the State of Bihar and in the State of Jharkhand and it cannot be said that any particular State has exclusive jurisdiction in this regard. Therefore, this submission is meritless and is rejected accordingly. 6. Coming to the second question about issuance of notice before blacklisting, a bare reading of the notice (Annexure-6) would show that the notice does not mention the consequences that would follow or for what purpose, the notice is being issued. The notice only says that the petitioner was required to show cause against the allegation that certain documents as filed by him was found to be forged. Failure to respond or an unsatisfactory response would lead to further consequences. What were those consequences have not have stated. In my view, this notice does not comply with principles of natural justice. In this connection, I may refer to the well known judgment of the Apex Court in the case of S.L. Kapoor vs. Jagmohan and Others since reported in AIR 1981 Supreme Court 136 wherein such a situation has been dealt with by their Lordships in paragraphs 6 as follows: "The requirements of natural justice are met only if opportunity to represent is given in view of proposed action. The demands of natural justice are not met even if the very person proceeded against has furnished the information on which the action is based, if it is furnished in a casual way or for some other purpose. The person proceeded against must know that he is being required to meet the allegations which might lead to a certain action being taken against him. If that is made known the requirements are met." 7. Here, in the present case, several consequences could have flown. Petitioner not being interested in doing work in the State of Jharkhand could have ignored the same but if he was told that the consequences contemplated was blacklisting which would have effect of his business in Bihar, he would have surely pursuade the matter in a different perspective altogether. Here, in the present case, several consequences could have flown. Petitioner not being interested in doing work in the State of Jharkhand could have ignored the same but if he was told that the consequences contemplated was blacklisting which would have effect of his business in Bihar, he would have surely pursuade the matter in a different perspective altogether. In that view of the matter, as held by the Apex Court, the requirements of principles of natural justice are not met and consequentially the order as passed and contained in Annexure-5 is liable to be set aside and is set aside being in violation of the principles of natural justice. 8. Even otherwise, it is submitted on behalf of the petitioner that the order blacklisting the petitioner is cryptic and non-speaking order. It is submitted on behalf of the petitioner that the petitioner never made any application for the tender in question. This aspect of the matter has not been dealt with at all. All that the order says is that the show cause notice was issued to the petitioner and on enquiry, it was found that the reply to show cause notice was unsatisfactory and, therefore, the petitioner was blacklisted. At this juncture, I may mention this is a common order in respect of several parties. In other words, it is a stock order which shows no application of mind. So far as enquiry is concerned with regard to the forged document, that was itself indicated in the show cause notice which again shows that there was a pre-determined conclusion even before the enquiry was initiated. Thus, apart from others, as indicated above, this also vitiates the order which is a quasi-judicial order as it strenuously affects the working of the petitioner. As a consequence of blacklisting, he is prohibited from any work in the State of Bihar or Jharkhand. The consequences being very serious, the compliance of law has to be more strictly scrutinised. 9. In that view of the matter, I have been left with no option but to quash the impugned order. Consequently, Annexure-4 refusing renewal of registration of petitioner by State of Bihar and Annexure-5 blacklisting the petitioner by State of Jharkhand are quashed and now the State of Bihar would be obliged to renew the registration of the petitioner without reference to the order of State of Jharkhand. 10. Consequently, Annexure-4 refusing renewal of registration of petitioner by State of Bihar and Annexure-5 blacklisting the petitioner by State of Jharkhand are quashed and now the State of Bihar would be obliged to renew the registration of the petitioner without reference to the order of State of Jharkhand. 10. This writ application is, accordingly, allowed.