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Madhya Pradesh High Court · body

2014 DIGILAW 1175 (MP)

Niravana Parth Movers v. State of M. P.

2014-09-18

S.K.GANGELE, S.K.PALO

body2014
JUDGMENT 1. Heard. 2. The petitioner has filed this petition against the orders dated 28.12.2013 (Annexure P/1) and dated 3.2.2012 (Annexure P/2). 3. The petitioner was awarded a contract for construction of a road namely; Bharoli Ajleshwar via Bhagwanpur Tighra road length 16.00 km. As per the contract, the petitioner had to complete the work within a period of fifteen months from the date of execution of the contract. 4. The allegation against the petitioner is that the petitioner did not complete the work of construction of the road even after a period of three years. The date of completion was up to 27.11.2011. 5. The petitioner in its reply pleaded that the petitioner had completed almost all the work except a patch of 400 mtrs. because a case was filed before the court and villagers did not permit the petitioner to complete the work. Executive Engineer vide his letter dt.31.12.2013 informed the same to the Superintending Engineer. Vide order dated 3.2.2012 (Annexure P/2), the registration of the petitioner was suspended. It is mentioned in the order that a show cause notice was issued to the petitioner and the reply submitted by the petitioner was not satisfactory. Against the aforesaid order, petitioner preferred an appeal. Appellate authority vide impugned order 28.12.2013 (Annexure P/1) dismissed the appeal on the ground that the petitioner did not complete the work within a period of three years. The appellate authority also observed that the Chief Engineer, P.W.D. opined that the petitioner did not complete the work. 6. The petitioner explained the reason in the reply to show cause notice why he could not complete the construction work of 400 mtrs. The authority has observed in the order of suspension that the reply of the petitioner was not satisfactory. The appellate authority also did not consider the reasons in suspending the registration of the petitioner and dismissed the appeal. The authority has only observed that the Chief Engineer opined that the petitioner did not complete the work. 7. Hon'ble Supreme Court in M/s Kulja Industries Ltd. Vs. Chief Gen. Manager, W.T. Project, BSNL reported in 2013 AIR SCW 5637 has held as under in regard to blacklisting of the contractor :- "The power to blacklist a contractor whether the contract be for supply of material or equipment or for the execution of any other work whatsoever is inherent in the party allotting the contract. Chief Gen. Manager, W.T. Project, BSNL reported in 2013 AIR SCW 5637 has held as under in regard to blacklisting of the contractor :- "The power to blacklist a contractor whether the contract be for supply of material or equipment or for the execution of any other work whatsoever is inherent in the party allotting the contract. There is no need for any such power being specifically conferred by statute or reserved by contractor. That is because 'blacklisting' simply signifies a business decision by which the party affected by the breach decides not to enter into any contractual relationship with the party committing the breach. Between two private parties the right to take any such decision is absolute and untrammelled by any constrains whatsoever. The freedom to contract or not to contract is unqualified in the case of private parties. But any such decision is subject to judicial review when the same is taken by the State or any of its instrumentalities. This implies that any such decision will be open to scrutiny not only on the touch-stone of the principles of natural justice but also on the doctrine of proportionality. A fair hearing to the party being blacklisted thus becomes an essential pre-condition for a proper exercise of the power and a valid order of blacklisting made pursuant thereto. Whether the order is reasonable, fair and proportionate to the gravity of the offence is similarly examinable by a writ Court." 8. From the judgment of the Hon'ble Supreme Court, it is clear that the decision of the authority has to be tested on the principle of natural justice and also on the doctrine of proportionality. The rule of natural justice requires that the authority has to consider the pleadings and points raised by a person and decide the lis so that it could be spelled out that whether the authority acted properly or not and it has considered all the aspects. In the present case, the petitioner pleaded that he could not complete construction of a portion of 400 mtr. of road because villagers filed a case before the court. Executive Engineer also mentioned the same in his letter. There is no mention of this fact or other facts by the authority in suspending the registration of the petitioner, hence, the order is non-speaking. The appellate authority has also not considered the facts properly. 9. of road because villagers filed a case before the court. Executive Engineer also mentioned the same in his letter. There is no mention of this fact or other facts by the authority in suspending the registration of the petitioner, hence, the order is non-speaking. The appellate authority has also not considered the facts properly. 9. Consequently, the Writ Petition is disposed of with the following directions :- (i) Impugned orders dt.28.12.2013 (Annexure P/1) and dt.3.2.2012 (Annexure P/2) are hereby quashed. (ii) The matter is remanded back to the authority to pass fresh order after considering all the aspects of the case. (iii) It is hereby clarified that this court has not opined about the merits of the case. 10. No order as to costs.