Madhya Pradesh High Court
M/S Land Mark Engineer vs The Chief Executive Officer on 7 January, 2015
W.P. No.6574/2014
(M/s Land Mark Engineer Vs. The Chief Executive Officer)
07.01.2015
Shri Sankalp Kochar, Advocate for the petitioner.
Shri Rahul Jain, learned Dy. Advocate General for the
respondents on advance copy.
Heard on admission.
The petitioner has filed this writ petition challenging the action of the respondents whereby the petitionerfirm has been debarred from participating in further process of tendering. It is said that this action amounts to blacklisting of petitionerfirm and as the same has been done in contravention to the law laid down by the Supreme Court, the same is unsustainable. In support of his contentions, learned counsel has invited our attention to an order passed by this Court in W.P.No. 13124/2013 to say that blacklisting of the contractor without show cause notice and hearing is unsustainable.
Shri Rahul Jain, learned Dy. Advocate General for the respondent refutes the aforesaid contention of the petitioner and submits that this is not a case of blacklisting. As a matter of fact, the action has been taken under the special condition Clause 4.3 of the agreement and as identical petition has been disposed of by this Court vide W.P No. 1191/2014 learned counsel submits that this petition be also dismissed.
As far as the judgment in case of W.P. No. 13124/2013 is concerned, Shri Jain points out that in the said case general principle of blacklisting has been considered and the aforesaid clause of the agreement has not been taken note of and thus submitted that it has no applicability in the instant case.
Having heard learned counsel for the parties and on perusal of the orders relied upon by the parties, it is clear that this is not a case of blacklisting of petitionerfirm. However, the action has been taken against the petitioner under the special condition no.4.3 of the agreement which read thus;
4.3 Past Performance of the contractors in PMGSY will also be taken into account. Contractors who have abandoned/left work incomplete or performance was poor and consequently their agreement was rescinded by MPRRDA, are not eligible to participate in the tenders and will be disqualified even if tender form have been issued to them unless otherwise decided by MPRRDA in any case.
If the action taken is in violation to the aforesaid Clause of the agreement, then the petitioner has to take recourse to remedy available before the Madhya Pradesh Arbitration Tribunal, as agreed to by the parties.
This question has also been considered by this Court in W.P. No. 1191/2014 and after considering the provisions of Clause 4.3, similar contention has been rejected and following findings have been recorded: "We find much force in the arguments of the learned counsel for the respondents as once the action has been taken for cancellation in accordance with the agreement between the parties, it is not appropriate for us to interfere in the matter, exercising limited jurisdiction in a petition under Article 226 of the Constitution, particularly when remedy of approaching the Madhya Pradesh Arbitration Tribunal under the provisions of Madhya Pradesh Madhyastham Adhikaran Adhiniyam, is available to the petitioner."
Keeping in view of the aforesaid, in this case also in the light of Clause No.4.3 the general principle as is relied upon by the petitioner will not apply. Once the action has been taken for cancellation in accordance with the agreement between the parties, it is not appropriate for us to interfere in the matter exercising limited jurisdiction in a petition under Article 226 of the Constitution of India.
Accordingly, finding no ground to interfere, this petition is dismissed with liberty to the petitioner to take recourse to the aforesaid remedy.
Certified copy as per rules.
(Rajendra Menon) (S.K.Gangele)
JUDGE JUDGE
nd