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2010 DIGILAW 1627 (ALL)

Alliance Industrial Marketing v. Union of India

2010-05-17

PRADEEP KANT, RITU RAJ AWASTHI

body2010
JUDGMENT 1. Heard the counsel for the petitioner Sri Ram Raj, Sri Pratul Kumar for respondents no. 2 to 5 and Sri K.K. Shukla for Union of India. 2. The petitioner feels aggrieved by the order dated 10.9.09 passed by the Divisional Engineer (A&P), B.S.N.L., Sitapur (respondent no. 4), by means of which for non-compliance of the requirement of entering into contract in pursuance of the approval of its bid for Annual Maintenance Contract (AMC) of the engine/alternator sets, his security money has been forfeited and a direction has been issued that the petitioner firm shall not be given AMC for a period of one year. After the aforesaid order was passed, the petitioner appears to have made a representation on 21.12.09 challenging the said order on various ground. The said representation, which was termed as appeal for justice, has also been decided and rejected vide order dated 12.3.2010. It is against these two orders that the present writ petition has been filed. 3. Sri Ram Raj, counsel for the petitioner, vehemently urged that the order impugned dated 10.9.09 is an order of blacklisting, which has been passed without issuing any notice i.e. without affording any opportunity and, therefore, the said order is bad. 4. He relies upon the case of Southern Painters v. Fertilizers & Chemicals Travancore Ltd. and another, wherein, the name of the existing contractor on the panel prepared by the respondent-Public Sector Unit was deleted from the list of qualified contractors on account of vigilance report and consequently it was not issued the tender form, which was taken to an order of blacklisting, without affording opportunity. 5. Further reliance has been placed upon the case of M/s Monica Plastics Pipes (P) Ltd., Muzaffarnagar vs. Director of Industries, U.P., Kanpur and another, wherein after entering into the contract, the firm was blacklisted for violating the terms of the contract. 6. Sri Pratul Kumar appearing for the B.S.N.L. Submitted that this is not a case of blacklisting and even if it is treated to be a case as such, it cannot be said that the petitioner was not made aware of the deficiency on its part or that it was not afforded opportunity before passing the impugned order. 7. 6. Sri Pratul Kumar appearing for the B.S.N.L. Submitted that this is not a case of blacklisting and even if it is treated to be a case as such, it cannot be said that the petitioner was not made aware of the deficiency on its part or that it was not afforded opportunity before passing the impugned order. 7. He further submits that in any case on the own request of the petitioner in its representation/appeal, it has been given full opportunity vide letter dated 4.9.09 and, therefore, it can be taken as post decisional hearing, as such, the discretionary jurisdiction of this Court may not be exercised for a person, who has not taken steps for making the agreement, for which reason, no contract could be awarded. 8. Further argument is that the instant is a case, where the petitioner was required to make an agreement and for that matter, he was afforded opportunity in terms of Clause 22 and 23 of the bid document but the petitioner avoided to make such an agreement and, therefore, in the absence of any contract actually being awarded, the question of blacklisting would not arise, as the petitioner itself invited such an order as the respondents could not have waited for indefinite period. 9. It is not in dispute that the petitioner was given the contract earlier also for AMC of the engine/alternator sets. On 27.8.09, it was required to make an agreement within a week in pursuance of the new tender opened on 27.6.09, wherein three bidders had participated including the petitioner. The petitioner was sent a letter on 27.8.09 to make agreement within a week but the petitioner did not turn up. Its authorised representative replied that the rates were much below (18%-25%) than the previous tender and, therefore, it was not possible to do the work on such rates. 10. A reminder was again sent to the petitioner on 4.9.09 by extending the time limit for making the agreement till 9.9.09. The petitioner did not come forward even during the extended period for making the agreement. 11. It was thereafter that on 10.9.09 negotiations were held with the rest of the bidders and bid of M/s Cosmo Electrical & Refrigeration, Raebareli, was accepted. 12. The petitioner did not come forward even during the extended period for making the agreement. 11. It was thereafter that on 10.9.09 negotiations were held with the rest of the bidders and bid of M/s Cosmo Electrical & Refrigeration, Raebareli, was accepted. 12. At this juncture, counsel for the petitioner submitted that the petitioner does not want to challenge the award of contract made in favour of M/s Cosmo Electrical & Refrigeration nor it is aggrieved by not getting the contract but it is only aggrieved with the order impugned dated 10.9.09, which says that the petitioner would not be allowed participate in the matter of contract of A.M.C. of the engine/alternator sets for a period of one year. 13. This order was passed on 10.9.09 and opportunity was afforded to the petitioner even before passing of the said order, requiring the petitioner to make the agreement. 14. In a case where the tenderer or the bidder is apprised of the requirement, which necessarily has to be fulfilled before entering into the contract or finalisation of the award of contract and if despite such opportunity being given the tenderer/bidder does not cooperate and avoids the making of agreement, the cancellation of such a bid/tender offer would not require any further opportunity to be afforded. It is a different matter, where an agreement has been entered into, as required, the contract has been awarded and there occurs breach of contract or non-performance of the work allocated in accordance with the terms and norms prescribed and standards laid down, then if the contract is cancelled, and/or the contractor is to be blacklisted, an opportunity has to be afforded before passing any order of blacklisting. But where no agreement has been entered into and no contract has been awarded, there would not be any question for giving any further opportunity but for an opportunity of making the deficiency good or for making the agreement within a reasonable time. 15. May be at the choice of the authority concerned, further opportunity can be afforded or the bidder may be required to explain as to why he should not be blacklisted but in a case like the present one, where despite opportunity being given, the petitioner did not choose to make the agreement, we do not find any ground to interfere under Article 226 of the Constitution. 16. 16. In regard to the plea regarding blacklisting, suffice it would be to mention that it is not an order of blacklisting but it is an order for debarring the petitioner in participating in the tender for a period of one year, only for the work of A.M.C. of the engine/alternator sets. 17. For the reasons aforesaid, the writ petition is dismissed. 18. This order would not come in the way of the respondents in dealing with other companies nor would affect the right of the petitioner in any other contract with the B.S.N.L., if any such contract is existing or if the petitioner intends to participate in the award of any such contract.