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Madhya Pradesh High Court · body

2019 DIGILAW 377 (MP)

Sarswati Enterprises v. State of M. P.

2019-05-10

SANJAY DWIVEDI

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ORDER 1. The learned counsel for the parties submit that the pleadings are complete and the matter is required to be heard finally. 2. Looking to the issue involved in the present petition and the arguments confined by the learned counsel for the petitioner only to the extent that the order impugned, whereby the petitioner has been black listed, can be set aside on the count that the mandatory requirement for giving an opportunity of hearing and to issue show-cause notice has not been followed, the same is heard finally. 3. By the instant petition, the petitioner is questioning the validity of order dated 20.3.2018 (Annexure-P-3) whereby the respondent No. 2 has been black listed the petitioner for a period of five years as he has not followed the terms and conditions of the contract. 4. The learned counsel for the petitioner submits that before issuing the order impugned, keeping name of the petitioner in the black list for a period of five years, no show-cause notice was issued to the petitioner proposing such action against him. He further submits that the petitioner has also not been given any opportunity of hearing before issuing the order impugned. He further submits that it is a mandatory requirement of law that before black listing, the proposed action has to be informed to the person concerned by issuing a showcause notice specifying therein reasons for which such action is being taken, but no such requirement has been followed. As per the petitioner, the order impugned is, therefore, suffers from material illegality and can be quashed on the ground of violation of principle of natural justice. He relied upon a decision reported in (2014)9 SCC 105 parties being Gorkha Security Services v. Government (NCT of Delhi) and others. 5. Per contra, the learned Government Advocate appearing for the respondents/State relied upon the reply submitted by the State and drawn attention of this Court towards the tender document which contains the condition i.e. condition No. 20 which categorically provides that in case of non supplying the material according to the terms and conditions of the contract by the tenderer, the name of such tenderer shall be kept in the black list. He further relied upon condition No. 11 of the tender condition which provides that it is incumbent upon the tenderer to supply the material as per contract within the stipulated time i.e. seven days and if the same is not done, then it would be the right of the competent authority to terminate the contract and to purchase the material from some other agency. He further submits that in view of the terms and conditions of the contract since the petitioner has violated the condition, therefore, there is nothing illegal on the part of the respondent No. 2 to blck list the petitioner and to pass the order impugned. 6. In view of the admitted position that before passing the order impugned, no show-cause notice was issued to the petitioner and even in the reply there is no whisper regarding providing any opportunity of hearing to the petitioner before taking the impugned action and black listing him for a period of five years. Although, there is a specific condition contained in the tender form but that does not mean that the same can be applied without following the principle of audi alteram partem, as such, the view taken by the Supreme Court in the case of Gorkha Security Services (supra), I am of the considered opinion that the order impugned suffers from violation of principle of natural justice and it is liable to be quashed only on this count. Accordingly, the order dated 20.3.2018 (Annexure-P-3) is hereby quashed. However, liberty is granted to the respondents, if so required, to take action against the petitioner by following the principle of natural justice. 7. With the aforesaid observations, the petition filed by the petitioner is allowed. Parties shall bear their own costs.