Delhi High Court - Orders
Theme Engineering Services Pvt. Ltd. & ... vs National Highways Authority Of India on 14 March, 2022
Author: V. Kameswar Rao
Bench: V. Kameswar Rao
$~70
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 3969/2022, CM APPL. 11822/2022
THEME ENGINEERING SERVICES PVT. LTD. & ANR.
..... Petitioner
Through: Mr. Parag P. Tripathi, Sr. Advocate
with Mr. Abhinav Vasisht, Ms.
Nandadevi Deka, Mr. Savyasachi
Rawat, Mr. Arnuabha Ganguli and
Mr. Anirudh Dusaj, Advocates.
versus
NATIONAL HIGHWAYS AUTHORITY OF INDIA
..... Respondent
Through: Mr. Manish K. Bishnoi, Adv. with
Ms. Pallavi Singh, Adv.
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
ORDER
% 14.03.2022
1. This petition has been filed by the petitioners with the following prayers:-
"In view of the facts and circumstances, it is most respectfully prayed that this Hon'ble Court may be pleased to:
i. Issue an appropriate writ under Article 226 of the Constitution of India for issuance of an appropriate writ of Certiorari to quash and set aside the impugned order dated 02.03.2022 passed by the Respondent; ii. Issue writ of mandamus or any other writ/direction to Respondent to allow the petitioner to participate in pending/upcoming bids of the Respondent; iii. To direct the Respondent to consider the pending bids/proposals (under evaluation) submitted by the petitioner in various projects of the Respondent;Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:15.03.2022 10:56:20
iv. To restrain Respondent from disqualifying petitioner in any of the pending/future projects solely, on the basis of impugned letter dated 02.03.2022; and v. Pass any other order/s and direction/s as this Hon'ble Court may deem fit and proper in light of the facts and circumstances of the case."
2. In substance, the challenge in the petition is to the order dated March 02, 2022 (Annexure P-1) whereby the respondent/NHAI has restrained the petitioner No.1 from participating in any NHAI bids (directly or in association/JV) with immediate effect until further orders.
3. It is the submission of Mr. Parag P. Tripathi, learned Senior Counsel for the petitioners by drawing my attention to page 177 of the paper book that before the impugned communication was received, the respondent had in fact vide letter of the same date called upon the petitioner No.1 to submit reply / documents on an interim report submitted by an Expert Committee, within seven days, with regard to an investigation undertaken by the NHAI with respect to the Collapse of under construction Precast PSC Segmental Box Girders. Mr. Tripathi states the impugned communication was issued without waiting for the reply / documents sought for which is in violation of the settled law of the Supreme Court in the case of Gorkha Securities Services v. Govt. of NCT of Delhi, 2014 SCC OnLine SC 599, wherein it is held that a show cause notice is required to be issued before it is decided whether a noticee is to be blacklisted or suspended, as the case may be. Mr. Tripathi also states that after filing of the writ petition, the petitioners on March 09, 2022 had submitted its reply/documents to the communication dated March 02, 2022 but the same have not been considered till date as such, resulting in continuance of the impugned order to the prejudice of the Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:15.03.2022 10:56:20 petitioners which need to be set aside.
4. On the other hand, Mr. Manish K. Bishnoi, learned counsel appearing for the NHAI justifies that action stating that the impugned communication is pending investigation by an Expert Committee. He states that the impugned order must not be read to mean that the same is a blacklisting order but only an interim measure, during investigation, to restrain the petitioner No.1 from bidding for works under taken by NHAI.
5. I am not in agreement with the submission made by Mr. Bishnoi for the simple reason that the impugned communication which restrains the petitioner No.1 from participating in NHAI bids (directly or in association/JV) has the effect of blacklisting. The same has drastic civil consequences as highlighted by Mr. Tripathi.
6. This Court is of the view, the petitioner No.1 having submitted the reply / documents to the communication dated March 02, 2022 (at page
177), the respondent should consider the same and pass an order, which may be as an interim measure as well.
7. At this stage, Mr. Tripathi state that the petitioners be granted liberty to submit additional documents and a personal hearing as well.
8. The plea is reasonable. The respondent shall give a personal hearing to the representative of the petitioner No.1 on March 17, 2022 at 03:00 PM. The representative of the petitioner No.1 shall appear before Mr. P.G. Khodaskar (and other officers), Chief General Manager (T)-TN, along with the documents on which the petitioner No.1 intends to rely upon. The officer(s) shall give a hearing to the representative of the petitioner No.1 and then pass an order on March 21, 2022.
9. In view of the above order, the communication dated March 02, 2022 Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:15.03.2022 10:56:20 is set aside.
10. Petition and the connected application are disposed of.
V. KAMESWAR RAO, J MARCH 14, 2022/ds Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:15.03.2022 10:56:20