Document Fragment View

Matching Fragments

3. The petitioner in W.P.(C) No.21036/2012 is a private limited company and is the lead partner of STUP-DARASHAW consortium. Ext.P1 is the copy of the Request for Approval (RFP)(revised one) dated 11.7.2012 which was issued in modification of the earlier proposal dated W.P.(C).Nos.19826/12 & 21036/12 18.5.2012. After the completion of the bidding procedures, the petitioner was granted a Letter of Award as per Ext.P3 dated 9.8.2012. Ext.P4 is the copy of the letter of acceptance issued by the petitioner. Ext.P5 is the copy of the first show cause notice issued by the second respondent proposing to cancel the same on the ground that there is violation of clause 6.4.4. of the RFP. This was replied by the petitioner by Ext.P6. In fact, the allegation in the show cause notice pertains to certain orders of blacklisting issued by the Uttarakhand State Infrastructure Development Corporation Ltd. as well as Rajkot Municipal Corporation. After furnishing reply, the petitioner submitted a detailed affidavit by Ext.P7. Finally, further actions were dropped and the petitioner executed the agreement which is effective from 17.8.2012 (Ext.P8).

"6. STUP prepared its para-wise comments in respect of the allegations raised by M/s. Mir Projects and Consultants Pvt. Ltd. In W.P.(C) No.19826/2012. On going through the same it was noticed that there was a blacklisting order by the Department of Transport, Government of Punjab against STUP for violating the terms of the agreement and irregularities in execution of some work in Jalandhar. The blacklisting order issued on 27.3.2009 did not specify the period of blacklisting, in other words the said order amounted to blacklisting for indefinite period. As such the blacklisting subsisted on the date of submission of proposal by STUP Consultants to KIAL. In view of the above development and on being the ground that there is misrepresentation of facts under clause 10 of the RFP and a clear violation of clause 6.4.4 of the RFP by suppressing the material facts, KIAL issued a second show cause notice to STUP Consultants Pvt. Ltd. On 1.9.2012 (Ext.P9) as to why the consultancy agreement which was signed W.P.(C).Nos.19826/12 & 21036/12 between STUP and KIAL on 21.8.2012 should not be cancelled without any further notice and without prejudice to the right of KIAL to claim from STUP cost escalations, losses, damages, compensation and other expenses incurred or to be incurred by KIAL, in terms of the affidavit and indemnity provided by them. For the said show cause notice, the reply given by them was not at all convincing. It was very clear from the order passed by the Government of Punjab that STUP Consultants was blacklisted from the list of Punjab Infrastructure Development Board for various violations and irregularities committed by STUP in execution of the work at Jalandhar. The order of the Department of Transport, Government of Punjab, blacklisting STUP was a speaking order narrating the various violations committed by STUP and after considering the order dated 26.8.2008 passed by the Hon'ble High Court of Punjab and Haryana in Writ Petition No.19464/2007 filed by STUP.
7. It is evident from facts admitted by STUP that the State of Punjab by its order dated 3.12.2007 blacklisted STUP. The said order was challenged before the Hon'ble High Court of Punjab and Haryana in Writ Petition No.19464/2007 on the ground that the blacklisting order was passed without giving STUP a hearing. By the decision dated 26.8.2008, the High Court quashed the blacklisting order and the Government of Punjab in the Department of Transport was directed to pass a fresh order, in that regard after hearing the petitioner. Thereafter, the Government of W.P.(C).Nos.19826/12 & 21036/12 Punjab, Department of Transport issued a speaking order dated 27.2.2009 blacklisting STUP Consultants Pvt. Ltd. from the list of Punjab Infrastructure Development Board without specifying the period of blacklisting. The said blacklisting was not revoked and it was subsisting at the time when the proposal was submitted by STUP to KIAL. Their contention that they were not aware of such a blacklisting, since the blacklisting order was posted to some obscure site office of another project of the petitioner at Chandigarh and not at their Delhi office does not hold good since these facts came to the attention of KIAL on the basis of their own submission, as explained above. Hence, there is absolutely no merit in their contention that they were not aware of the blacklisting by the Government of Punjab. This is very material and it is clear that relevant facts were deliberately suppressed by STUP with a malafide intention. Their further contention that they have not been given sufficient time to reply for the second show cause notice is also baseless. STUP never requested for further time to reply to the notice. They never requested for any opportunity to present the matter in person. So from admitted facts it was clear that STUP Consultants indulged in fraudulent practice as defined under clause 10 of the RFP. KIAL cannot consider the legality of the blacklisting order while considering the question regarding violation of the clause 6.4.4 of the RFP. Hence KIAL decided to terminate the contract and issued the letter dated 5.9.2012 (Ext.P12)."

35. A reading of Ext.P16 shows that the question posed was whether the petitioner has been blacklisted or debarred from participating as a consultant in the projects of PIDB for the period December 31, 2011 onwards and the answer is the following: "As per the records of Legal Wing of PIDB, M/s. STUP Consultants has not been blacklisted or debarred by PIDB for the period December 31, 2011 onwards." As rightly pointed out by the learned counsel for the second respondent, the question does not relate to the blacklisting order in force, but was about any order from 31.12.2011 onwards. No material is relied upon or produced by the petitioner other than Ext.P16 to show that the order blacklisting of the year 2009 was varied or withdrawn. Apart from that, the query and the reply furnished under the Right to Information Act relating to the said aspect is not relevant here, obviously since it was only concerning any order from W.P.(C).Nos.19826/12 & 21036/12 December 31, 2011, whereas the order herein is of the year 2009. Therefore, Ext.P16 cannot advance the case of the petitioner to any extent. The order of blacklisting the petitioner was effective from the year 2009 onwards and no specific question has been posed in respect of the said order.