Delhi High Court - Orders
Theme Engineering Services Pvt. Ltd. & ... vs Shri Awadhesh Kumar & Ors on 23 February, 2021
Author: Prathiba M. Singh
Bench: Prathiba M. Singh
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:24.02.2021 17:19:42
$~18 & 22
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CONT.CAS(C) 182/2021
THEME ENGINEERING SERVICES
PVT. LTD. & ANR. ..... Petitioners
Through: Ms. Nandadevi Deka, Mr. Sudhir
Yadav, Ms. Divya Sharma and
Mr. Savyasachi Rawat, Advocates
(M: 8130788166)
versus
SHRI AWADHESH KUMAR & ORS. ..... Respondents
Through: Mr. Dayan Krishnan, Sr. Advocate
with Ms. Padma Priya and Mr. Dhruv
Nayar, Advocates for
Respondent/NHAI
AND
+ W.P.(C) 1173/2021
THEME ENGINEERING SERVICES
PVT. LTD. & ANR. ..... Petitioners
Through: Ms. Nandadevi Deka, Mr. Sudhir
Yadav, Ms. Divya Sharma and Mr.
Savyasachi Rawat, Advocates.
versus
NATIONAL HIGHWAYS AUTHORITY
OF INDIA & ORS. ..... Respondents
Through: Mr. Dayan Krishnan, Sr. Advocate
with Ms. Padma Priya and Mr. Dhruv
Nayar, Advs. for Respondent/NHAI.
CORAM:
JUSTICE PRATHIBA M. SINGH
ORDER
% 23.02.2021
1. This hearing has been done through video conferencing. CM APPL. 7049/2021 (for exemption) in CONT. CAS(C) 182/2021 CM APPL. 7213/2021 (for exemption) in WP(C) 1173/2021
2. Allowed, subject to all just exceptions. Applications are disposed of.
Signature Not Verified CONT.CAS(C) 182/2021 & W.P.(C) 1173/2021 Page 1 of 4 Digitally Signed By:PRATHIBA M SINGH Signing Date:24.02.2021 16:53Digitally Signed By:DINESH SINGH NAYAL Signing Date:24.02.2021 17:19:42 CM APPL. 7212/2021 in WP(C) 1173/2021
3. This application has been filed by the Petitioner for taking on record order dated 10th February, 2021 passed by the ld. Division bench of this Court in LPA No. 56/2021 titled NHAI v. Theme Engineering Services Pvt. Ltd. & Ors.
4. The said order is taken on record. Application is disposed of. CONT. CAS(C) 182/2021 & WP(C) 1173/2021
5. CONT. CAS(C) 182/2021 has been filed alleging that the Respondents are in contempt of order dated 1st February, 2021 passed in W.P.(C) 1173/2021.
6. In W.P.(C) 1173/2021, on 1st February, 2021, an application had been moved by the Petitioners seeking directions against the Respondents, in view of the fact that the Respondents had initially removed the Petitioners from black-listing and had later restored the same. The Court had, on that date, orally directed the parties to place on record the order of ld. Division Bench in LPA No. 56/2021. The order has been placed on record today.
7. Ld. Counsel for the Petitioner submits that despite there being no stay granted by the Division Bench, the NHAI continues to reflect the Petitioner as being Blacklisted. Mr. Dayan Krishnan, ld. Senior counsel, concedes that the order of the ld. Division Bench does not show that there is a stay granted. The matter has been fixed for final hearing before the ld. Division Bench, prior to the next date of hearing before this Court i.e., on 22nd March, 2021. He further submits that in view of the fact that another application for stay has already been filed before this Court, for which time to file a reply has been given and the matter is fixed for 22nd March, 2021, an order for compliance of order dated 1st February, 2021 may not be passed.
Signature Not Verified CONT.CAS(C) 182/2021 & W.P.(C) 1173/2021 Page 2 of 4 Digitally Signed By:PRATHIBA M SINGH Signing Date:24.02.2021 16:53Digitally Signed By:DINESH SINGH NAYAL Signing Date:24.02.2021 17:19:42
8. A perusal of the order passed by the ld. Division Bench shows that there is no stay of order dated 1st February, 2021 passed by this Court. Moreover, a perusal of the two circulars shows that on 5th February, 2021, the NHAI had clearly been advised to abide by the stay granted by this Court. Accordingly, pursuant to this circular, the Petitioner was not shown as black-listed. The said circular dated 5th February 2021, reads:
"Sub: Supervision Consultancy Services for construction supervision of Balance work of 4-laning of Ranchi- Rargaon-Mahulia section from km 114.000 to km 277.000 of NH-33 in the state of Jharkhand-Stay Order dated 01.02.2021 passed by the Hon'ble High Court of Delhi-reg.
It is brought to the notice of all Divisions of NHAI- HQ/ROs/PIUs that Hon'ble High Court of Delhi on 01.02.2021 in W.P.(C) 1173/2021 & CM APP. 3305/2021 titled as Theme Engineering Services Pvt. Ltd. & Anr vs. National Highways Authority of India & Ors has stayed the oeperation of the impugned order dated 12.01.2021 passed by & NHAI thereby debarring the Petitioner Company i.e., M/s Theme Engineering Services Pvt. Ltd. for a period of six months, until the next date of hearing i.e., 11.05.2021.
2. In view of Hon'ble High Court Order dated 01.02.2021 and as advised by Legal Division, all concerned Divisions may evaluate and consider the pending bids of M/s Theme Engineering Services Pvt. Ltd., if the same have not been finalized yet and Letter of Award has not been issued by NHAI in favour of any third party, so far. This has the approval of Competent Authority."
Surprisingly, however, on the very next day i.e., 6th February 2021, the previous circular of 5th February, 2021 was withdrawn by the NHAI. The said Circular reads:
"Sub: Supervision Consultancy services for construction supervision of Balance work of 4- Laning of Ranchi Rargaon Mahulia Section from km 114.000 to km 277.500 Signature Not Verified CONT.CAS(C) 182/2021 & W.P.(C) 1173/2021 Page 3 of 4 Digitally Signed By:PRATHIBA M SINGH Signing Date:24.02.2021 16:53 Digitally Signed By:DINESH SINGH NAYAL Signing Date:24.02.2021 17:19:42 ofNH-33 in the State of Jharkhand.- Stay Order Dated 01.02.2021 Passed by the Hon' ble High Court of Delhi-reg.
It is to inform that Circular bearing no. NHAI/JH/SC/RRJ/NH-33/2019 dated 05.02.2021 is hereby withdrawn with immediate effect.
This is for kind information and urgent necessary action please"
Both these circulars were issued prior to the order passed by the ld. Division Bench dated 10th February, 2021 and during the operation of order dated 1st February, 2021.
9. The NHAI, being a public authority, is bound to implement the orders of the Court so long as the same are in operation. Accordingly, since there is no stay granted in the LPA by the Ld. Division Bench, it is directed that the NHAI would abide by the order dated 1st February, 2021 and intimate M/s Infracon to not reflect the Petitioner as black-listed. Blacklisting has been termed as `civil death' by the Supreme Court. The recalcitrant manner in which the Circulars are being published by the NHAI, even prior to the appeal having been listed before the Ld. Division Bench shows that the orders passed by the Court are being completely ignored. While the order dated 1st February 2021, is in operation, such steps ought not to have been taken by the NHAI. Accordingly, appropriate instructions shall be issued by the officials concerned to ensure compliance of the order dated 1st February 2021, so long as it is in operation. NHAI to do the needful and report compliance on the next date of hearing.
10. List on 24th March, 2021.
PRATHIBA M. SINGH, J.
FEBRUARY 23, 2021/mw/T Signature Not Verified CONT.CAS(C) 182/2021 & W.P.(C) 1173/2021 Page 4 of 4 Digitally Signed By:PRATHIBA M SINGH Signing Date:24.02.2021 16:53