Saj Infracon Project India Limited v. The State Of Bihar

IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.14291 of 2019 ====================================================== Saj Infracon Project India Limited through its Chief Operating Officer, Mr. Akhilesh Kumar Jaiswal, Son of late Ram Narayan Lal, Ward No. 04, Hakikatpur, Bakhtiyarpur, Patna, At Present Resides at Udaygiri Apartment, Flat No. 401, P.O. G.P.O. Police Station- Kotwali, Budh Marg, Patna- 800 001.

... ... Petitioner/s

Versus

1.

The State of Bihar through the Principal Secretary, Road Construction Department, Vishweshwariya Bhawan, Bailey Road, Patna. 2.

The Principal Secretary, Road Construction Department, Vishweshwaraiya Bhawan, Bailey Road, Patna.-15 3.

The Engineer-in-Chief-Cum-Additional Commissioner-Cum- Special Secretary, Road Construction Department, Vishweshwaraiya Bhawan, Bailey Road, Patna.-15 4.

The Chief Engineer, (North Bihar Wing), Road Construction Department, Vishweshwaraiya Bhawan, Bailey Road, Patna.-15 5.

The Superintending Engineer, Road Construction Department, Road Circle, Hajipur.

6.

The Executive Engineer, Road Construction Department, Road Division, Gopalganj.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s :

Mr.Manish Sahay, Advocate Mr. Anil Kumar Sinha, Advocate Mr. Siddharth Aditya, Advocate For the Respondent/s :

Mr.Amit Prakash, GA-13 Sanjay Kumar, AC to GA-13 ====================================================== CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI and HONOURABLE MR. JUSTICE ARUN KUMAR JHA ORAL ORDER (Per: HONOURABLE MR. JUSTICE P. B. BAJANTHRI) 04-05-2023 In the instant writ petition, petitioner has prayed for the following relief(s):- "(I) For quashing of debarment order, issued vide Office Order No. 04 of 2019 read with letter No. 279 Gopalganj dated

2/5 11.02.2019 under signature of the Executive Engineer, as contained in Annexure-P-8,by which the petitioner has been declared defaulter and debarred from participating in future tenders for indefinite period in most arbitrary manner, violation of principal of natural justice as well as having without jurisdiction.

(II) For commanding and directing the concerned respondent to pay 8th Running Account bill amount to the petitioner as submitted by him in the office of the Executive Engineer.

(III) For Commanding and directing the concerned respondent to provide GST in the said contract as well as refund the excess amount of royalty as paid by the petitioner against the said work.

(IV) For declaring that the action of the Executive Engineer is arbitrariness, malafide, malicious, colourable exercise of power as well as having without Jurisdiction.

(V) For further passing such an Order or Orders for which the petitioner is entitled under the law in the facts and circumstances of this case."

2. The petitioner was successful bidder for execution of work, namely, 'Widening and Strengthening with Maintenance work of Bhagipatti-Samaur Bankata via Kateya Bazar 0.00 km to 7.705 km for the year 2017-18'. In not executing the said work timely, the respondents have resorted to debar the petitioner for an indefinite period from participating in

3/5 future tender vide Order No. 04 of 2019 read with letter No. 279, Gopalganj dated 11.02.2019 passed by the Executive Engineer. Further, he has prayed for certain directions relating to payment of running account bill etc. to the petitioner. Annexure P-8 dated 11.02.2019 reads as under:-

3. Perusal of the aforementioned debarment order, it is

4/5 evident that the Executive Engineer has not followed the due process of law like issuance of show-cause notice and obtaining reply from the petitioner. Further, the debarment of petitioner from participating in any future tender is for an indefinite period. On both the count, the Apex Court time and again held that show-cause notice must be specific in respect of debarment or blacklisting. Further, period is required to be mentioned in the show-cause notice. All these formalities have not been completed before debarring the petitioner from participating in future tender for an indefinite period. Therefore, we find primafacie that impugned order of debarment dated 11.02.2019 is without application of mind.

4. Accordingly, Annexure P-8 dated 11.02.2019 is set aside. Reserving liberty to the competent authority take afresh steps while taking note of judicial pronouncements like UMC Technologies Pvt. Ltd. vs. Food Corporation of India and Anr., reported in (2021) 2 SCC 551 and later decision in the case of Isolators and Isolators Through Its Proprietor Mrs. Sandhya Mishra vs. Madhya Pradesh Madhya Khestra Vidyut Vitran Co. Ltd. and Anr., reported in 2023 LiveLaw (SC)330. Such steps be taken within a period of 4 months from the date of receipt of this order. Insofar as prayer No. 2 and 3 the petitioner

5/5 is at liberty to invoke appropriate remedy before the jurisdictional forum.

5. The writ petition stands allowed in-part.

(P. B. Bajanthri, J) ( Arun Kumar Jha, J) Himanshu/- Ashish/- U