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Gujarat High Court

Vc Project And Infra Pvt. Ltd. vs Nagarpalika Veraval Patan Joint ... on 5 February, 2020

Author: Harsha Devani

Bench: Harsha Devani, Sangeeta K. Vishen

         C/SCA/14109/2019                                        JUDGMENT




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 14109 of 2019

FOR APPROVAL AND SIGNATURE:

HONOURABLE MS.JUSTICE HARSHA DEVANI

and

HONOURABLE MS. JUSTICE SANGEETA K. VISHEN

==========================================================

1     Whether Reporters of Local Papers may be allowed to
      see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy of the
      judgment ?

4     Whether this case involves a substantial question of law
      as to the interpretation of the Constitution of India or any
      order made thereunder ?

==========================================================
                VC PROJECT AND INFRA PVT. LTD.
                            Versus
          NAGARPALIKA VERAVAL PATAN JOINT MUNICIPALITY
==========================================================
Appearance:
MR.CHIRAG K SUKHWANI(6603) for the Petitioner(s) No. 1
for the Respondent(s) No. 3,4,5
MR AMAR D MITHANI(484) for the Respondent(s) No. 1
SINGHI AND CO(2725) for the Respondent(s) No. 2
==========================================================
    CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI
           and
           HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
                        Date : 05/02/2020
                        ORAL JUDGMENT

(PER : HONOURABLE MS.JUSTICE HARSHA DEVANI)

1. By this petition under article 226 of the Constitution of India, the petitioner seeks the following substantive reliefs:

C/SCA/14109/2019 JUDGMENT "15. The Petitioner, therefore, prays:-

a. Your Lordships may be pleased to admit present petition.

b. You Lordships may be pleased to issue appropriate writ of mandamus or any other appropriate writ, order or direction quashing & setting aside the action of the respondent No.1, 3, 4 & 5 by not qualifying the petitioner for the words in question.

c. Your Lordships may be pleased to issue appropriate writ of mandamus or any other appropriate writ, order or direction directing the Respondent No.1, 3, 4 & 5 to open the Price-Bid of the petitioner with respect to the words in question. The petitioner further seeks a direction to the said respondents to open the price bid of the petitioner with respect to such tenders."

2. The facts as appearing in the memorandum of petition are that Mr. Vimal Kathiriya used to carry on business as proprietor of M/s. Vimal Construction. At that time, Gujarat Water Supply Sewerage Board (hereinafter referred to as "GWSSB") by an order dated 27.12.2012 de-barred/black listed Vimal Construction, which was challenged before this High Court by way of writ petition, being Special Civil Application No.8316 of 2015. By a judgment and order dated 28.03.2016, this court set aside the order dated 27.12.2012, where after, M/s. Vimal Construction has not been black-listed/de-barred by any authority including the GWSSB.

3. The first respondent - Veraval Patan Joint Municipality invited tenders for drain network and footpath at various Page 2 of 5 Downloaded on : Sun Jun 14 06:26:23 IST 2020 C/SCA/14109/2019 JUDGMENT locations in Veraval-Patan city including five years of comprehensive maintenance (2nd attempt). By an evaluation report dated 01.08.2019, submitted by the second respondent

- Tata Consulting Engineers Ltd., the first respondent - Municipality was informed that the petitioner was disqualified on the ground that it is in the debarred agencies list of GWSSB, and therefore, the petitioner's bid has been excluded. The petitioner, therefore, addressed a letter dated 07.08.2019 to the Chief Officer of the first respondent by providing copies of the order dated 28.03.2016 passed by this court in the above referred special civil application. It is the case of the petitioner that it could not have been disqualified on the basis of a black listing order which is no longer in existence, and hence, the evaluation report dated 01.08.2019 issued by the second respondent - Consultants excluding the petitioner is erroneous on the face of the record. It was submitted that, therefore, the petitioner has been wrongly disqualified from the tender process.

4. It may be noted that while the arguments advanced before this court are in respect of the above referred tender issued by the first respondent - Municipality, the petition contains averments with regard to tenders invited by the respondent No.3 - Ahmedabad Municipal Corporation, the respondent No.4 - Urban Development and Urban Housing Department as well as the respondent No.5 - Surendranagar - Dudhrej Nagarpalika. However, this court had issued notice only to the respondents No.1 and 2.

5. From the submissions advanced before this court, it appears that the main concern of the petitioner is that based upon the blacklisting order passed by the GWSSB, which has Page 3 of 5 Downloaded on : Sun Jun 14 06:26:23 IST 2020 C/SCA/14109/2019 JUDGMENT already been set aside by this court; the petitioner may not be excluded from any tender process in future. The learned advocate for the petitioner has, therefore, submitted that the petitioner does not press for any other reliefs prayed for in the present petition and would be satisfied if the court clarifies that the petitioner cannot be disqualified on this ground.

6. This court has also heard Mr. Amar Mithani, learned advocate for the respondent No.1 - Municipality and Mr. Gaurav Mathur with Mr. Abhishek Shah, learned advocates for Singhi and Co., learned advocates for the respondent No.2 - Consultants.

7. Insofar as the disqualification of the petitioner on the ground of having been blacklisted by the GWSSB is concerned, it is an admitted position that M/s. Vimal Construction was a proprietary concern of Vimal Katheriya, which was debarred and placed in the debarred agencies list by GWSSB and not the petitioner M/s. VC Project & Infra Pvt. Ltd. Clearly, therefore, the petitioner could not have been disqualified on the ground that M/s. Vimal Construction has been placed in the debarred agencies list by GWSSB. Moreover, M/s. Vimal Construction had challenged the action of the GWSSB of blacklisting it, by filing a writ petition before this court, being Special Civil Application No.8316 of 2015, which came to be allowed by judgment and order dated 28.03.2016, whereby the order of blacklisting was set aside, leaving it open to the GWSSB to issue a fresh show cause notice listing the allegations against M/s. Vimal Construction on which the GWSSB wishes to rely for passing any order of punishment, debarment or blacklisting. It is the case of the petitioner that subsequent thereto, no notice has been issued to M/s. Vimal Construction.

C/SCA/14109/2019 JUDGMENT

8. The learned advocates for the respondents do not dispute the factual position that the order of blacklisting of M/s. Vimal Construction has been set aside by this court and as on date, there is no order of blacklisting against M/s. Vimal Construction. Under the circumstances, the respondents were not justified in placing reliance upon the order of blacklisting passed by the GWSSB for the purpose of disqualifying the petitioner from the tender process.

9. In the light of the above discussion, the court is of the view that the evaluation report dated 01.08.2019, to the extent it has been reported therein that the petitioner is excluded from the tender process as M/s. Vimal Construction has been black-listed, is erroneous, inasmuch as, it is an admitted position that the order whereby M/s. Vimal Construction was black-listed, has been set aside by this court.

10. Since, the learned advocate for the petitioner has not pressed the other reliefs prayed for in the petition; no further orders are required to be passed in the matter. With the above observations, the petition stands disposed of. Notice is discharged with no order as to costs.

(HARSHA DEVANI, J) (SANGEETA K. VISHEN,J) RAVI P. PATEL Page 5 of 5 Downloaded on : Sun Jun 14 06:26:23 IST 2020