Gujarat High Court
Rajdeep Electricals Private Limited vs Kandla Port Trust & 3 on 11 July, 2017
Bench: M.R. Shah, B.N. Karia
C/SCA/20699/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 20699 of 2016
For Approval and Signature:
HONOURABLE MR.JUSTICE M.R. SHAH Sd/
and
HONOURABLE MR.JUSTICE B.N. KARIA Sd/
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1 Whether Reporters of Local Papers may be allowed to see No
the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India or any
order made thereunder ?
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RAJDEEP ELECTRICALS PRIVATE LIMITED....Petitioner(s)
Versus
KANDLA PORT TRUST & 3....Respondent(s)
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Appearance:
MR PREMAL S RACHH, ADVOCATE for the Petitioner(s) No. 1
MR MIHIR JOSHI, SR. ADVOCATE with MR DHAVAL D VYAS, ADVOCATE for the
Respondent(s) No. 1
MR SAMIR AFZAL KHAN, ADVOCATE for the Respondent(s) No. 4
NOTICE SERVED BY DS for the Respondent(s) No. 1 3
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CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE B.N. KARIA
Date : 11/07/2017
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) [1.0] By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs.
"(A) YOUR LORDSHIPS may be pleased to issue appropriate Page 1 of 6 HC-NIC Page 1 of 6 Created On Sun Aug 13 05:49:05 IST 2017 C/SCA/20699/2016 JUDGMENT writ, order or direction, quashing and setting aside the impugned action on the part of respondent authority in rejecting etender for the subject work submitted by the petitioner vide communication dtd.28.11.2016 and not opening the Price bid of the petitioner with regard to award of subject work ignoring the interim stay order dtd.01.12.2016 passed by this Hon'ble Court in Special Civil Application No.20109/2016 and further seeking to award tender work to another company, as being illegal, arbitrary, unjust, unreasonable, violative of principles of natural justice as also violative of Articles 14 and 19(1)(g) of the Constitution of India;
(B) YOUR LORDSHIPS may be pleased to stay the implementation, operation and execution of the impugned communication dtd.28.11.2016 (annexed at AnnexureA) and further be pleased to direct respondent authority to open the Price Bid of the petitioner in respect of Tender Notice No.EL/AC/2476 and after following due procedure, award the tender work for Upgradation of Barge Handling Facilities at Bunder Basin, Electrification of 5 Hector Area, pending the admission, hearing and final disposal of this petition, in the interest of justice and equity;"
[2.0] At the outset it is required to be noted that as such the petitioner was awarded the contract by the Kandla Port Trust for operation and maintenance of electrical equipments in 66/11 KV SubStation, 66 KV Switchyard and DG Set Inside Cargo Jetty Area for a period of 3 years. That by an order dated 17.10.2016 the Kandla Port Trust terminated the contract invoking Clause 23 of the general conditions of contract and also passed an order banning / blacklisting the petitioner for a period of 3 years from participating in tenders of Kandla Port Trust. The aforesaid decision was the subject matter of Special Civil Application No.20109/2016. That on terminating the contract the respondent No.1 - Kandla Port Trust issued fresh tender notice inviting the tender for the subject work and the last date for submission of etender was 17.10.2016. That on 29.11.2016, the petitioner preferred the Page 2 of 6 HC-NIC Page 2 of 6 Created On Sun Aug 13 05:49:05 IST 2017 C/SCA/20699/2016 JUDGMENT aforesaid Special Civil Application No.20109/2016 challenging the order dated 17.10.2016 passed by the respondent No.3 thereby terminating the contract awarded to the petitioner and banning the petitioner for a period of 3 years from participating in tenders of Kandla Port Trust. That as vide order dated 17.10.2016, the petitioner was already banned for a period of 3 years from participating in tenders of Kandla Port Trust, vide impugned communication dated 28.11.2016 (which according to the petitioner was received by it on 30.11.2016) rejected etender of the petitioner for the subject work on the ground that the petitioner is already banned to participate in Kandla Port Trust tenders as pointed out in the order dated 17.10.2016. That thereafter in the aforesaid Special Civil Application No.20109/2016, the Division Bench of this Court granted adinterim relief on 01.12.2016 staying the order dated 17.10.2016 insofar as banning the petitioner. That thereafter the petitioner has preferred the present Special Civil Application on 09.12.2016 challenging the impugned decision dated 28.11.2016 rejecting the etender of the petitioner for the subject work and in opening the price bid of the petitioner.
[3.0] Shri Premal Rachh, learned Advocate appearing on behalf of the petitioner has vehemently submitted that the impugned decision dated 28.11.2016 which has been served upon the petitioner on 30.11.2016 is absolutely in breach of the interim order granted by this Court dated 01.12.2016 in Special Civil Application No.20109/2016 by which the Division Bench granted adinterim stay of the order dated 17.10.2016 insofar as banning the petitioner. It is submitted that the Executive Engineer (E) was served with the said order dated 01.12.2016 on the very day i.e. on 01.12.2016 and despite the same and with a view to get out of the stay order granted by this Court on 01.12.2016, the impugned Page 3 of 6 HC-NIC Page 3 of 6 Created On Sun Aug 13 05:49:05 IST 2017 C/SCA/20699/2016 JUDGMENT backdated order dated 28.11.2016 has been passed. That the present petition has been preferred with the aforesaid prayers solely on the ground that the communication dated 28.11.2016 is backdated and said decision has been taken only with a view to get out of the interim stay granted by this Court on 01.12.2016 in Special Civil Application No.20109/2016.
[4.0] Present petition is vehemently opposed by Shri Joshi, learned Counsel appearing on behalf of the respondent. An affidavit in reply is filed denying the allegation that the communication dated 28.11.2016 was backdated and that the same was issued only after the Executive Engineer (E) was served with the stay order on 01.12.2016. It is submitted that communication dated 28.11.2016 was already sent to the petitioner through email on 29.11.2016 itself. It is submitted that the copy of the same was sent to the petitioner by post also which has been received by the petitioner on 30.11.2016. It is submitted that therefore the same cannot be said to be with a view to get out of the adinterim stay granted by this Court on 01.12.2016 in Special Civil Application No.20109/2016.
[4.1] It is further submitted by Shri Joshi, learned Advocate appearing on behalf of the respondent that by order dated 17.10.2016 the petitioner was already banned / debarred for a period of 3 years from participating in any of the contract with the Kandla Port Trust and the contract was canceled and therefore, when the fresh tenders were invited for the subject work and the petitioner was already debarred for a period of 3 years vide communication dated 28.11.2016, etender of the petitioner is rightly not accepted and the bid of the petitioner is not rightly opened. Therefore, it is requested to dismiss the present petition.
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C/SCA/20699/2016 JUDGMENT
[5.0] Heard learned Counsel appearing for respective parties at length.
At the outset it is required to be noted that vide order dated 17.10.2016 as such the contract which was awarded to the petitioner has been canceled and the petitioner is debarred / banned for a period of 3 years from participating in any of the contract with the Kandla Port Trust. Therefore, the Kandla Port Trust was required to issue tender and accordingly the fresh tenders came to be issued. Despite the fact that though the petitioner was banned for a period of 3 years, the petitioner again submitted the tender which came to be rejected vide communication dated 28.11.2016 i.e. much prior to the interim stay granted by this Court on 01.12.2016 in Special Civil Application No.20109/2016. Therefore, as such when the petitioner communicated vide communication dated 28.11.2016, that its bid is not required to be opened as the petitioner is already banned, there was no stay order granted by this Court. Under the circumstances, the impugned communication dated 28.11.2016 cannot be said to be in anyway illegal and/or with a view to get ouf of the adinterim stay granted by this Court on 01.12.2016 in Special Civil Application No.20109/2016, as alleged.
[5.1] Now, so far as the contention on behalf of the petitioner that the communication dated 28.11.2016 is backdated and the allegation on behalf of the petitioner that after the said order was served upon the Executive Engineer (E), thereafter with a view to get out of the adinterim stay of staying the order of debarring is concerned, it is required to be noted that as such the petitioner was served the communication dated 28.11.2016 through email on 29.11.2016 itself and even through post on 30.11.2016. Therefore, the aforesaid allegation has no substance.
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C/SCA/20699/2016 JUDGMENT
[5.2] In view of the above and for the reasons stated above, the impugned communication dated 28.11.2016 cannot be said to be in anyway illegal and/or arbitrary and/or to get out of the adinterim stay granted by this Court on 01.12.2016 in Special Civil Application No.20109/2016, as alleged.
[6.0] In view of the above and for the reasons stated above, present Special Civil Application fails and the same deserves to be dismissed and is, accordingly, dismissed. Adinterim relief, if any, stands vacated forthwith. No costs.
Sd/ (M.R. SHAH, J.) Sd/ (B.N. KARIA, J.) Ajay Page 6 of 6 HC-NIC Page 6 of 6 Created On Sun Aug 13 05:49:05 IST 2017