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2017 DIGILAW 238 (GAU)

Mayur Talukdar v. State of Assam

2017-02-22

A.K.GOSWAMI

body2017
JUDGMENT : Mr. Arup Kumar Goswami, J. Heard Mr. A. Goyal, learned counsel for the petitioner. Also heard Mr. S. Chamaria, learned counsel, appearing for the respondents. 2. A Notice Inviting Tender (NIT) was issued by the Managing Director, Assam Seeds Corporation Ltd., on 01.09.2016, for supply for planting materials (plants, grafts, hybrid seeds of vegetables falling under Group-C of the NIT) fixing 15.09.2016, up to 3-00 P.M. as the last date/time for receipt of bids through e-procurement. The petitioner submitted his tender in respect of Papaya seeds. After three months of the submission of tender by the petitioner, a supply order was issued to the petitioner on 17.12.2016 for supplying hybrid Papaya seeds of "Red Lady Variety" for the Districts of Kamrup (M), Kamrup and Goalpara for supply of 1.38 Kg, 2.75 Kg and. 87 Kg, in total 5 Kg, with the last date for supply fixed on 25.12.2016. However, in Annexure-1 to the said order, the last date of supply is wrongly recorded as 25.12.2015. 3. The petitioner responded by letter dated 21.12.2016 contending that seeds are not available in the company from whom the petitioner was expecting to get the seeds and, therefore, it is unable to effect the supply. The Managing Director, Assam Seeds Corporation, by letter dated 03.01.2017, blacklisted the petitioner pending further necessary action also indicating that no further order will be placed to the firm of the petitioner along with some others as indicated therein. The only contention advanced by Mr. Goyal is that the impugned blacklisting order was passed in violation of the principles of natural justice as no Show Cause notice was issued to the petitioner before the aforesaid action of blacklisting was taken. 4. Mr. Chamaria does not dispute that no notice had been given to the petitioner before the impugned order of blacklisting was passed. However, it is submitted by him that there is an arbitration clause in the NIT to the effect that settlement of disputes can be resolved by arbitration as incorporated in Clause-16 of the General Conditions of Contract and, therefore, this Court may not entertain this writ application. He has placed reliance on the case of P. Jibon Singh v. State of Manipur and Ors., reported in 2008 (1) GLT 871. 5. The availability of alternative remedy is not an absolute bar to exercise powers under Article 226 of the Constitution of India. He has placed reliance on the case of P. Jibon Singh v. State of Manipur and Ors., reported in 2008 (1) GLT 871. 5. The availability of alternative remedy is not an absolute bar to exercise powers under Article 226 of the Constitution of India. The only question that has fallen for consideration before this Court is whether the authorities could have blacklisted the petitioner without affording an opportunity of showing cause to the petitioner. Law in this context is fairly settled. Way back in the case of M/s Erusian Equipment & Chemicals Ltd. v. State of West Bengal and Others, reported in (1975) 1 SCC 70 , the Supreme Court had observed that blacklisting has the effect of preventing a person from the privilege and advantage of entering into lawful relationship with the Government for purposes of gains. The fact that the disability is created by the order of blacklisting indicates that the relevant authority is to have an objective satisfaction. Fundamentals of fair play require that the person concerned should be given an opportunity to represent his case before he is put on the black list. 6. In Raghunath Thakur v. State of Bihar and Others., reported in (1989) 1 SCC 229, the Supreme Court held that black-listing any person in respect of business ventures has civil consequence for the future business of the person concerned in any event. Even 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. 7. The reliance placed by Mr. Chamaria in P. Jibon Singh (supra) is not applicable in the facts and circumstances of this case. In the said case, the writ petition was filed claiming outstanding dues and, in the aforesaid context, it was held that no writ petition will lie in a contractual matter where there is a clause of arbitration. In the instant case, there is no factual dispute involved and the writ petitioner has raised only a question of law. The fact that notice was not issued to the petitioner is also admitted by Mr. Chamaria. 8. In view of the above, I am of the considered opinion that the impugned order of blacklisting of the petitioner cannot be sustained in law. Accordingly, the impugned order dated 03.01.2017, so far as it relates to the petitioner, is set aside. 9. The fact that notice was not issued to the petitioner is also admitted by Mr. Chamaria. 8. In view of the above, I am of the considered opinion that the impugned order of blacklisting of the petitioner cannot be sustained in law. Accordingly, the impugned order dated 03.01.2017, so far as it relates to the petitioner, is set aside. 9. However, setting aside of the impugned order will not preclude the respondent authorities in proceeding to issue appropriate Show Cause notice to the petitioner for blacklisting.