Andhra Pradesh High Court - Amravati
Naratanpet Mustaq vs The State Of Andhra Pradesh, on 6 November, 2024
APHC010480842024 IN THE HIGH COURT OF ANDHRA
PRADESH
[3329]
AT AMARAVATI
(Special Original Jurisdiction)
WEDNESDAY ,THE SIXTH DAY OF NOVEMBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE VENKATESWARLU
NIMMAGADDA
WRIT PETITION NO: 24785/2024
Between:
Naratanpet Mustaq ...PETITIONER
AND
The State Of Andhra Pradesh and Others ...RESPONDENT(S)
Counsel for the Petitioner:
1. MARELLA RADHA Counsel for the Respondent(S):
1. GP FOR ROADS BUILDINGS The Court made the following:2
WRIT PETITION NO: 24785/2024 INTERIM ORDER:
I.A.No.1 of 2024 Heard learned counsel for the petitioner and learned Government Pleader for Roads and Buildings appearing for the respondents.
2. The grievance of the petitioner, in short, is that the petitioner is a successful bidder in respect of the work i.e., urgent repairs to Kambaladine- Kallakunta Road in Km 1/0 to 6/8 in Kurnool District". After his selection as successful bidder, the petitioner entered into an agreement with respondent No.3 vide agreement No.76/2022 dated 29.03.2022 with a stipulation that the work should be completed on or before 30.04.2024.
3. Learned counsel for the petitioner submits that the respondents are not providing inputs as agreed under the agreement dated 29.03.2022, which is hampering the commencement of the subject work. He further submits that the respondents without discharging their obligations in providing inputs as required under the agreement, but they are pressurizing 3 for completion of the work. For which, the petitioner requested for compliance of the obligation on part of the respondents. While things stood thus, the 3rd respondent without issuing any notice and without jurisdiction passed the impugned proceedings dated 16.02.2024 which is contrary to the guide lines framed under G.O.Ms.No.94 Irrigation and CAD (PW-COD) Department dated 01.07.2023 issued by the 1st respondent.
4. For better understanding Rule 5 of the said G.O. is extracted here under:
"As per Rule 5 of Annexure II of the said G.O., a contractor can only be blacklisted for the following grounds:
i) There are sufficient and strong reasons to believe that the contractor or his employee has been guilty or malpractice (s) such as irregular practices including formation of ring, bribery corruption, and fraud including substitution and in tenders smuggling, pilfering of unauthorized use of disposal of Government materials issued for specific work.
ii) A contractor continuously refuses to pay Government dues without showing adequate reasons.
iii) A contractor or his partner or his representative has been convicted by a court of law for offence involving moral turpitude in relation to business dealing(s). 4
iv) Security consideration including suspected disloyalty to the State as warrant.
v) The EMD shall also be forfeited."
5. Therefore Rule 5 clearly demonstrates that blacklisting of any contractor should be done by the head of the department (HOD). More so, only after prior approval of the 1st respondent herein. It is also contemplating that the present impugned proceedings i.e., proceedings for black listing of any contractor should be preceded by a prior notice to the person concerned.
Admittedly, in the case on hand, the impugned proceedings were issued without jurisdiction and without adhering to its own guidelines as enumerated under G.O.Ms.No.94, dated 01.07.2003.
6. In support of his contention, learned counsel for the petitioner relied upon the ratio laid down by the Hon'ble Apex Court in M/s. Erusina Equipment & Chemicals Ltd., v. State of West Bengal and another1 . The relevant portion (para Nos. 12, 15, 20) of the said order is extracted hereunder:
"12) the order of blacklisting has the effect of depriving a person of equality of opportunity 1 (1975) 1 SCC 70 5 in the matter of public contract. A person who is on the approved list is unable to enter into advantageous relations with the Government because of the order of blacklisting. A person who has been dealing with the Government in the matter of sale and purchase of materials has a legitimate interest or expectation. When the State acts to the prejudice of a person it has to be supported by legality.
15) the blacklisting order does not pertain to any particular contract. The blacklisting order involves civil consequences. It casts a slur. It creates a barrier between the persons blacklisted and the Government in the matter of transactions.
The black lists are "instruments of coercion".
20) 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 a 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 blacklist."
7. Learned counsel for the petitioner also relied upon the ratio laid down by the Hon'ble Apex Court in Kulja Industries Limited v. Chief General Manager, Western Telecom Project Bharat 6 Sanchar Nigam Limited and Others2, where the Hon'ble Apex Court also considered the judgment referred supra.
8. In view of the ratio laid down by the Hon'ble Apex Court and in violation of guidelines as enumerated in G.O.Ms.No.94 dated 01.07.2003, there is a prima-facie case in favour of the petitioner.
9. Accordingly, there shall be an interim direction as prayed for.
WRIT PETITION NO: 24785/2024 For filing counters, list the matter after four (04) weeks.
_________________________________ VENKATESWARLU NIMMAGADDA, J 06.11.2024 NOTE: C.C by two (2) days (B/o) BSP 2 (2014) 14 SCC 731