JDM Engineering and Construction Pvt. Ltd. v. State of Bihar
2023-11-03
ARUN KUMAR JHA, P.B.BAJANTHRI
body2023
DigiLaw.ai
ORDER Heard learned counsel for the parties. 2. In the instant petition, petitioner has prayed for the following reliefs:— "(i) To issue an appropriate Writ(s), Order(s) or Direction(s) to the respondent authorities to quash the office order dated 11.05.2023 contained in memo no. 111 whereby the petitioner's bid in NIT No. 10/2022-23 at serial no. 8 has been rejected on the ground that the petitioner has been blacklisted for a period of 10 years without issuance of any show cause notice or providing any opportunity of hearing; (ii) That in the alternative and without prejudice to the petitioner's right, to issue an appropriate Writ(s), Order(s) or Direction(s) to the respondent authorities to declare that the blacklisting order dated 11.05.2023 contained in memo no. 111 is unrelated/unconnected to the petitioner company which is a separate legal entity to JMD Engineering and Construction Private Ltd., and that therefore bids submitted by the petitioner cannot be rejected on the ground that JMD Engineering and Construction Private Ltd. has been blacklisted; (iii) To issue an appropriate Writ(s), Order(s) or Direction(s) to the respondent authorities for providing the petitioner with an opportunity of hearing before taking any coercive and harsh action against the petitioner. (iv) To issue an appropriate Writ(s), Order(s) or Direction(s) to the respondent authorities for keeping the letter dated 11/05/2023 as contained in memo no. 111 in abeyance till the final adjudication of this case; (v) To issue an appropriate Writ(s), Order(s) or Direction(s) to the respondent authorities to quash the minutes of the meeting of Technical Bid Committee dated 13.07.2023 by which the petitioner has been declared unqualified for the NIT No. MR-3054-04/2023-24; (vi) To issue an appropriate Writ(s), Order(s) or Direction(s) to the respondent authorities to allow the petitioner to participate in other bids and tenders that are issued by the State Government; and (vii) To pass any other appropriate Writ(s), Order(s), or Direction(s) that this Hon'ble Court may deem fit on the facts and in the circumstances of the case." 3.
It is necessary to reproduce Annexure- P-7 order dated 11.05.2023 which reads as under:— dk;kZy;&vkns'k la[;k&111 iVuk] fnukad&11-05-2023 fuxe }kjk vkeaf=r fufonk lwpuk la[;k&10@2022&23 ds Øe la[;k&8 Construction of +2 Level School Building (G+2) at Upgraded Senior Secondary School, Nagar Gama, Block-Dalsinghsarai, Distt-Samastipur (Group No. SSS-1401) ds fufonk esa laosnd "JMD Engineering & Construction & Pvt. Ltd. (Chakradhar Choudhary) Add-At+P.O.-Kewta, Dalsinghsarai, Samastipur" }kjk fufonk esa viyksM fd;s x;s dk;kZuqHko izek.k&i= dk;Zikyd vfHk;ark ¼eqŒ½ BSEIDC, iVuk }kjk lacafèkr foHkkx ls lR;kiu djk;k x;kA lacafèkr foHkkx] fcgkj jkT; Hkou fuekZ.k fuxe fyfeVsM] njHkaxk dk i=kad&730] fnukad&09-11-2022 ls xyr ,oa QthZ ik;k x;k gSA dkyhÑr djus gsrq vkils dkj.k i`PNk dh xbZ] ftlds vkyksd esa vkids }kjk tokc ugha lefiZr fd;k x;kA vr% mijksDr rF;ksa ds vkyksd esa 41oha funs'kd i"kZn dh cSBd ds fu.kZ;kuqlkj Bhdsnkjh fucaèku fu;ekoyh] 2012 ds la'kksfèkr n.M ds vkyksd esa laosnd "JMD Engineering & Construction & Pvt. Ltd. (Chakradhar Choudhary) Add-At+P.O.-Kewta, Dalsinghsarai, Samastipur" ds fucaèku dks i= fuxZr dh frfFk ls vxys 10 ¼nl½ o"kksZ ds fy, dkyhÑr fd;k tkrk gSA bl izLrko ij l{ke izkfèkdkj dk vuqeksnu izkIr gSA ¼gLrk{kj½ eq[; vfHk;ark 4. By the aforementioned order petitioner has been blacklisted for a period of 10 years. In this regard, show cause notice was stated to have been issued on 25.01.2023 and 21.03.2023. Petitioner is stated to have filed reply on 02.05.2023. The very object of providing show cause notice and obtaining reply and in not considering the reply, the very object of issuance of show cause notice in other words only empty formalities have been completed by the official respondents. Therefore, prima facie, the impugned order dated 11.05.2023 is bereft of material information. On this count itself, the impugned order is liable to be set aside. 5. At this stage, learned counsel for the petitioner submitted that respondents have issued notice as well as passed the blacklisting order in the name of JMD Engineering and Construction Private Limited whereas petitioner’s company name is JDM Engineering and Construction Private Limited. However, in respect of other materials are concerned it is evident that they are intact and there is a typographical error insofar as mentioning JDM. Therefore, it is not so serious mistake or error committed by the respondents and it is only a typographical error. 6.
However, in respect of other materials are concerned it is evident that they are intact and there is a typographical error insofar as mentioning JDM. Therefore, it is not so serious mistake or error committed by the respondents and it is only a typographical error. 6. Taking note of these facts and circumstances, petitioner has made out a case so as to interfere with the blacklisting order dated 11.05.2023 as it is not a speaking order. The concerned authority is hereby directed to take note of Kranti Associates (P) Ltd. vs. Masood Ahmed Khan Ors., reported in (2010) 9 SCC 496 decision by the Hon’ble Apex Court before proceeding further in the matter, particularly, Para- 47 reads as under:— "47. Summarising the above discussion, this Court holds: (a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. (b) A quasi-judicial authority must record reasons in support of its conclusions. (c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well. (d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power. (e) Reasons reassure that discretion has been exercised by the decision-maker on relevant grounds and by disregarding extraneous considerations. (f) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies. (g) Reasons facilitate the process of judicial review by superior courts. (h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of judicial decision-making justifying the principle that reason is the soul of justice. (i) Judicial or even quasijudicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system. (j) Insistence on reason is a requirement for both judicial accountability and transparency.
All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system. (j) Insistence on reason is a requirement for both judicial accountability and transparency. (k) If a judge or a quasijudicial authority is not candid enough about his/her decision-making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism. (l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or “rubber-stamp reasons” is not to be equated with a valid decision-making process. (m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decisionmaking not only makes the judges and decision-makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor [(1987) 100 Harvard Law Review 731-37] .) (n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decisionmaking, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See Ruiz Torija vs. Spain [(1994) 19 EHRR 553] EHRR, at 562 para 29 and Anya vs. University of Oxford [2001 EWCA Civ 405 (CA)] , wherein the Court referred to Article 6 of the European Convention of Human Rights which requires, “adequate and intelligent reasons must be given for judicial decisions”. (o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of “due process”. 7. Similarly, other decisions on contractual matters like UMC Technologies Pvt. Ltd. vs. Food Corporation of India and Another, reported in (2021) 2 SCC 551 read with Isolators And Isolators through Its Proprietor Mrs. Sandhya Mishra vs. Madhya Pradesh Madhya Kshetra Vidyut Vitran Co. Ltd. & Anr. reported in 2023 SCC Online SC 444 and later decision in State Bank of India and Ors. vs. Rajesh Agrawal and Ors. reported in (2023) 6 SCC 1 . The concerned authority is hereby directed to issue afresh detailed show cause notice in proposing to blacklisting the petitioner for a period of 10 years.
Ltd. & Anr. reported in 2023 SCC Online SC 444 and later decision in State Bank of India and Ors. vs. Rajesh Agrawal and Ors. reported in (2023) 6 SCC 1 . The concerned authority is hereby directed to issue afresh detailed show cause notice in proposing to blacklisting the petitioner for a period of 10 years. Thereafter, petitioner is hereby directed to file his say on the afresh notice to be issued by the concerned authority. Further, the concerned authority is hereby directed to pass a detailed speaking order after due consideration of each of the contention to be raised by the petitioner. The above exercise shall be completed within a period of four months from the date of receipt of this order. 8. Accordingly, the impugned order dated 11.05.2023 (Annexure P-7) stands set aside and writ petition is allowed.