Delhi High Court - Orders
M/S. Bcc Developers & Promoters Pvt. ... vs Central Public Works Department Sewa ... on 12 April, 2023
Author: Purushaindra Kumar Kaurav
Bench: Purushaindra Kumar Kaurav
$~42
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 11388/2019 & CM APPL 46884/2019
M/S. BCC DEVELOPERS & PROMOTERS PVT. LTD.
HAVING ITS REGISTERED OFFICE AT:
H-33, BASEMENT, MASJID MOTH,
GREATER KAILASH-II,
NEW DELHI-110048
..... Petitioner
Through: Mr. Rahul Malhotra, Advocate
alongwith Ms. Tripti Kapoor, Advocate
Versus
CENTRAL PUBLIC WORKS DEPARTMENT
SEWA BHAWAN,
R.K. PURAM,
NEW DELHI-110066
THROUGH SPECIAL D.G. (NORTH ZONE). ..... Respondent
Through: Mr. Vikram Jetly, CGSC alongwith Ms.
Shreya Jetly, Advocate
CORAM:
HON'BLE MR. JUSTICE PURUSHAINDRA KUMAR KAURAV
ORDER
% 12.04.2023
1. The present petition has been filed under Article 226 of the Constitution of India assailing the order dated 25.04.2019 passed by the respondent, whereby the name of the petitioner has been removed from the list of Class-I Composite Category contractors.
2. Learned counsel appearing on behalf of the petitioner submits that there is no time period for debarment prescribed in the impugned order and in view of the various pronouncements of the Hon'ble Supreme Court the -2- contractor cannot be debarred permanently. According to him, even the reasons for debarment are non-existent and on merits also, the impugned order deserves to be set aside.
3. Learned counsel appearing on behalf of the respondent opposes the prayer and submits that the representation filed by the petitioner since was pending before the Department, therefore, no decision has been taken. However, he supports the decision passed by the respondent while placing reliance on Office Memorandum dated 02.11.2021.
4. I have heard learned counsel appearing on behalf of the parties and perused the record.
5. The concluding part of the impugned order reads as under:-
"In view of above facts and records, the competent authority is pleased to order to remove the name of M/s BCC Developers & Promoters Pvt. Ltd., Class I; Composite category from the approved list of Class I (Composite Category) contractors".
6. It is thus apparent that the impugned order is permanent in nature and the same does not prescribe any time limit for debarment. The Hon'ble Supreme Court in the case of Kulja Industries Limited v. Chief Gen. Manager W.T. Proj. BSNL and Ors.1 has held that the debarment can never be of permanent nature and the period of debarment must depend upon the nature of the offence committed by any contractor. A similar view is taken by the Hon'ble Supreme Court in its decision in the case of B.S. Biyani Projects Pvt. Ltd. v. State of M.P. and Ors.2 holding that the order of blacklisting of permanent in nature is impermissible in law.
1(2014) 14 SCC 731 -3-
7. The Hon'ble Supreme Court in the case of State of Odisha and Ors. v. Panda Infraproject Limited3 while placing reliance in the decision of Kulja Industries Limited (supra) has held that under the facts of that case to permanently debar a contractor is harsh in nature.
8. In view of the aforesaid, it is seen that under the facts of the present case the order of permanent debarment is not permissible in law and, therefore, the impugned order deserves interference.
9. Even the Office Memorandum relied upon by learned counsel for the respondent is perused, the same would also indicate that a contractor can be debarred not beyond a period of three years in case of causing any loss of life or property or causing a threat to public health as part of execution of a public procurement contract.
10. It is thus seen that even assuming that the Office Memorandum which of course is subsequent to the impugned order is taken into consideration, the period of debarment cannot exceed beyond three years. It is also to be noted that on 06.01.2023, the Authority of Director General, CPWD also modified the Enlisting Rule and Clause 6.1.1 of the said Notification dated 06.01.2023 clearly states that the period of debarment by any department shall be considered as two years if no period is mentioned or if the period is more than two years.
11. In view of the aforesaid, in any case, the period of debarment cannot exceed beyond three years. It thus seen that the impugned order is impermissible in law and the same is also in violation of the Office 2 MANU/SC/1760/2016 -4- Memorandum, therefore, the same is modified and is treated to have been passed for a period of three years from the date of issuance. Since the said period has already expired on 25.04.2022, therefore, the same cannot be given effect to any more.
12. With the aforesaid observations, the petition stands disposed of alongwith pending application.
PURUSHAINDRA KUMAR KAURAV, J APRIL 12, 2023 p'ma 3 (2022) 4 SCC 393