NEUTRAL CITATION
C/SCA/10039/2023 CAV ORDER DATED: 19/08/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10039 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In
R/SPECIAL CIVIL APPLICATION NO. 10039 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 10045 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In
R/SPECIAL CIVIL APPLICATION NO. 10045 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 10048 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In
R/SPECIAL CIVIL APPLICATION NO. 10048 of 2023
==========================================================
RANJIT BUILDCON LIMITED Versus STATE OF GUJARAT ========================================================== Appearance:
MR SHALIN MEHTA, SENIOR ADVOCATE with MR ABHISHEK M MEHTA(3469) with MS SHAITALI DAVE for the Petitioner(s) No. 1,2 MR KEYUR GANDHI for GANDHI LAW ASSOCIATES(12275) for the Respondent(s) No. 2 MR JAYNEEL PARIKH, AGP for RESPONDENT-STATE ========================================================== CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI and HONOURABLE MR. JUSTICE DIVYESH A. JOSHI Date : 19/08/2023 COMMON CAV ORDER (PER : HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI)
1. By way of this batch of petitions, petitioners have challenged legality and validity of impugned action of respondent authority in debarring the petitioners for a period of Page 1 of 42 Downloaded on : Sun Sep 17 01:44:32 IST 2023 NEUTRAL CITATION C/SCA/10039/2023 CAV ORDER DATED: 19/08/2023 undefined three years by passing impugned orders and since common question of facts and law have arisen in these identical petitions, learned advocates have jointly requested to deal with the same conjointly and since submissions are identical in nature, same have been made in Special Civil Application No.10039 of 2023. Accordingly, considering the request, we have taken up hearing conjointly by treating Special Civil Application No.10039 of 2023 as a lead matter and basic facts are taken from it.
2. Petitioner of lead petition is a company incorporated under the provisions of Companies Act, 1956, engaged in the business of construction of infrastructure projects like Dam, Barrages, Weirs, Marine Structures, River Bridges, Road Bridges, Flyover, Railway Bridge, Roads, mining and Irrigation, Water Supply Projects in the State of Gujarat and across the country. Petitioner is also engaged in the business of construction of Metro Rail in Ahmedabad and Surat pursuant to work orders having been awarded by Metro Rail Corporation Ltd. It is the say of petitioner company that in his history of functioning and carrying out business under various projects, it Page 2 of 42 Downloaded on : Sun Sep 17 01:44:32 IST 2023 NEUTRAL CITATION C/SCA/10039/2023 CAV ORDER DATED: 19/08/2023 undefined has never been blacklisted or debarred in any of the projects.
3. It is the assertion of petitioner that respondent No.2, i.e. GWSSB has already awarded three tenders to the petitioner company for designing and constructing of filter plant conventional/ unconventional, RCR, ESR, RCC U/G Sump, Pump House, providing Lowering & Laying of various types & dia of pipeline, SITC Pumping machinery including electro mechanical works and other ancillary works etc. and including O&M of entire Regional Water Supply Scheme (RWSS) for five years after completion of works. Details of such tenders are provided in paragraph 5.3 of the petition, which read as under:-
i. Village Kanja RWSS, Tal. Vyara, District: Tapi (Tender ID No.161506) ii. Village Valod, RWSS, Tal. Vyara, District Tapi (Tender ID No.161500) and iii. Village Zankhari, RWSS, Tal. Vyara, District: Tapi (Tender ID No.159641)
4. According to tender ID No.161506 and contract in respect of village Kanja RWSS, Tal. Vyara, District Tapi, a letter of intimation regarding award of tender was given by respondent Board on 7.4.2015 and final value of contract was determined Page 3 of 42 Downloaded on : Sun Sep 17 01:44:32 IST 2023 NEUTRAL CITATION C/SCA/10039/2023 CAV ORDER DATED: 19/08/2023 undefined and particulars of such tender are reproduced hereunder:-
Date of starting of the contract 18.04.2015 Tender amount Rs.34,51,49,406/-
Stipulated completion 17.04.2017
Tender of completion of the 1st 30.03.2018
phase of the contract
Trial run period 31.12.2017 to
30.03.2018
Defect liability period 31.03.2018 to
30.03.2019
O&M period - 2nd phase of the 01.09.2018 to
contract 31.08.2023
5. Thereafter, vide communication dated 9.4.2015,
respondent Board intimated regarding carrying out necessary formalities which was later on followed by rectification letter dated 13.4.2015 insofar as it relates to submission of bank guarantee, etc. and then, after following such process, an agreement was executed, followed by a work order dated 18.4.2015. Said tender was awarded for construction of Filter Plant and ancillary work was to be completed within a period of 2 years (24 months) from the date of intimation, which according to petitioner was completed in stipulated time/ extended time period and later on, petitioner company was to undertake second phase of tender, i.e. Operation and Page 4 of 42 Downloaded on : Sun Sep 17 01:44:32 IST 2023 NEUTRAL CITATION C/SCA/10039/2023 CAV ORDER DATED: 19/08/2023 undefined Maintenance (O&M) of said plant for a period of 5 years (60 months). In respect of this, respondent Board addressed a communication on 12.9.2018 which is quoted by petitioner in paragraph 5.11, which reads as under:-
"... work has been successfully completed by you and system is ready for Operation and Maintenance. As per your tender specification and contract agreement, the operation and Maintenance Agreement for the O&M of designing and Construction of Filter Plant conventional unconventional, RCCF ESR, RCC U/G Sump, PH, Providing Lowering, Laying of various types & dia pipelines, SITC pumping machinery including electromechanical works & other ancillary works etc. complete including O&M for 60 months after completion of the works for Tapi bulk line based Kanja RWSS, District: Tapi (Tender ID: 101506) has been duly signed. Please find enclosed herewith copy of the O & M agreement and Operation and Maintenance will started from Date 01/09/2018 for five year: 60 Months."
6. Accordingly, O&M agreement No.B-2/3 year 2018-19 came to be executed. Later on, on 2.11.2018, petitioner requested for release of bank guarantee since construction of plant of first phase was already completed on 31.3.2018 along with performance guarantee and retention amount were thereafter released subsequently. According to petitioner, even work completion certificate was also issued by respondent Board on 31.12.2018.
7. It is the case of petitioner that during the course of said Page 5 of 42 Downloaded on : Sun Sep 17 01:44:32 IST 2023 NEUTRAL CITATION C/SCA/10039/2023 CAV ORDER DATED: 19/08/2023 undefined second phase of O&M, if there was any temporary breakdown of machinery or system, petitioner company used to provide water through tankers so as to ensure that water supply is continued to the villages. As against this, respondent Board used to release bill amount due to the petitioner company in an irregular manner even in respect of O&M of the plant. As a result of this, a letter was addressed by petitioner on 24.9.2019 that about 16 months' dues remained unpaid. According to petitioners, since company having successfully operated and maintained this scheme, even form No.3A was also issued by respondent Board on 10.2.2021, certifying work-wise details of completed work by petitioner company. However on account of some reasons beyond control of petitioners, water was not reaching in some of the areas for which there was exchange of correspondences between petitioner company and respondent Board and by way of such communications, clarification and reasons were projected by petitioner and it is the case of petitioner that despite said fact being in knowledge of respondent Board, instead of releasing payment, a notice was issued on 5.1.2023 followed by another notice dated 6.1.2023, Page 6 of 42 Downloaded on : Sun Sep 17 01:44:32 IST 2023 NEUTRAL CITATION C/SCA/10039/2023 CAV ORDER DATED: 19/08/2023 undefined attributing, according to petitioner, baseless allegations in respect of work related to O&M contract. Said notices were effectively replied by petitioner by series of correspondences which were stated in paragraph 5.18, but somehow respondent Board was not making payment of O&M charges on monthly basis which was otherwise a requirement of contract to be observed by respondent Board as well and this inordinate delay of payment was causing great financial hardship and it was found difficult for petitioner to undertake activities and smooth functioning of O&M of the plant. According to petitioner, on one hand, Board was expecting the work to be undertaken and forcing the petitioner company to continue O&M work, whereas on the other hand, respondent Board was not making any payment to the company.
8. It is the case of petitioner that first phase work was already completed and certified on 31.3.2018 and then O&M contract period starts from September 2018 and from initial stage itself, there was delay in making payment of O&M charges and by a tabular form, in paragraph 5.20, details have been pointed out regarding delay and in addition thereto, petitioner Page 7 of 42 Downloaded on : Sun Sep 17 01:44:32 IST 2023 NEUTRAL CITATION C/SCA/10039/2023 CAV ORDER DATED: 19/08/2023 undefined has asserted that even O&M charges relating to month of May 2021 to April 2023 are still awaited and as such Board has not made any payment right from May 2021 towards O&M charges to a substantial extent which amounting to Rs.26,51,727/-. But, instead of releasing payment, Board went on issuing notices and later on, respondent Board addressed a communication on 4.3.2023, which was replied by petitioner on 15.3.2023, but then again, letter was issued and then in the interregnum, respondent Board proceeded to issue a termination order on 9.3.2023 terminating the O&M part of the contract and for forfeiture of bank guarantee. Letters which were addressed by respondent Board to the petitioner were replied specifically on 28.3.2023, followed by letters dated 10.4.2023 and 11.4.2023 and lastly, one representation was also addressed on 17.4.2023 to the concerned Hon'ble Minister to ventilate the grievance. But then, Board proceeded to issue letter dated 8.5.2023 seeking recovery of an amount of Rs.6,71,88,017/-, which according to respondent Board was in respect of work for setting up of plant and pipelines, etc. relating to first phase of tender which was already ended and completed on 30.3.2018. Page 8 of 42 Downloaded on : Sun Sep 17 01:44:32 IST 2023
NEUTRAL CITATION C/SCA/10039/2023 CAV ORDER DATED: 19/08/2023 undefined Even trial run period from 30.12.2017 to 30.3.2018 with defect liability period from 31.3.2018 to 30.3.2019 was also successfully over and completion certificate was also issued. Petitioner company then also responded to the notices by a consolidated letter dated 19.5.2023, but then vide communication dated 29.3.2023, respondent Board intimated the petitioner company about its initiative action for debarment of petitioner company for a period of three years and to submit clarification within a period of 10 days and for which a letter dated 30.3.2023 followed by another letter dated 10.4.2023 came to be addressed. In respect of this communication, petitioner also replied, but then, to the surprise of the petitioner, without affording any opportunity to the petitioner and before company could make submission at length, petitioner received impugned order dated 16.5.2023 about decision to debar the company for a period of three years from participating in any contract or tender of respondent Board along with other attached impugned order dated 16.5.2023 and effect ultimately is that a serious prejudice would fall back upon the petitioner which has constrained the petitioner company to Page 9 of 42 Downloaded on : Sun Sep 17 01:44:32 IST 2023 NEUTRAL CITATION C/SCA/10039/2023 CAV ORDER DATED: 19/08/2023 undefined challenge the action of respondent authority, more particularly impugned orders date 12.5.2023 as well as 16.5.2023 and has invoked the extraordinary jurisdiction of this Court for seeking reliefs which are set out in paragraph 12 of the petition, which we deem it proper to quote hereunder:-
(A) YOUR LORDSHIPS may be pleased to admit and allow the present application.
(B) YOUR LORDSHIPS may be pleased to issue appropriate writ, order or direction quashing and setting aside the impugned order dated 12.05.2023 and 16.05.2023 (Annexure-A) debarring the petitioner for a period of 3 years from the date of the impugned order dated 16.05.2023.
(C) YOUR LORDSHIPS may be pleased to issue appropriate writ, order or direction, directing the respondents to delete the name of the petitioner company from the list of debarred agencies.
(D) Pending hearing and Final Adjudication of the captioned petition, YOUR LORDSHIPS be pleased to stay the implementation and operation of the impugned order dated 12.05.2023 and 16.05.2023 (Annexure-A) and be further pleased to direct the respondents to not take any other or further coercive action against the petitioner company;
(E) YOUR LORDSHIPS may be pleased to grant an ad- interim relief/s in terms of para 12(D) above;
(F) YOUR LORDSHIPS may be pleased to grant any other and further as may be deemed just and proper in the interest of Justice and fitness of things;
9. Insofar as Special Civil Application No.10048 of 2023 is concerned, the petitioner has come out with almost similar Page 10 of 42 Downloaded on : Sun Sep 17 01:44:32 IST 2023 NEUTRAL CITATION C/SCA/10039/2023 CAV ORDER DATED: 19/08/2023 undefined challenge on the premise that the petitioner Company has executed several projects to the satisfaction of its clients, be private or Government agencies and has never been blacklisted or debarred. Pursuant to the tender which was floated by respondent No.2 Board, i.e. GWSSB, three tenders were awarded in favour of the petitioner Company for designing and constructing filter plant, conventional/ unconventional, R.C.R, E.S.R, U/G Sump, Pump House, providing lowering and laying various types of dia of pipe line, SITC pumping machinery, including electro-mechanical works and other ancillary works etc., completed including O&M of entire Regional Water Supply Scheme for a period of five years after completion of works as indicated in paragraph 5.3 of the memo of petition. According to the petitioner, letter of intimation was issued on 7.4.2015 about contract worth Rs.30,56,86,269.47 and by narrating the basic stipulations of tender in paragraph 5.6, it has been submitted by the petitioner that entire process has been completed by petitioner including the submission of bank guarantee, rectification letter dated 13.4.2015 as desired and after execution of agreement, the work order was also issued on Page 11 of 42 Downloaded on : Sun Sep 17 01:44:32 IST 2023 NEUTRAL CITATION C/SCA/10039/2023 CAV ORDER DATED: 19/08/2023 undefined 18.4.2015.
10. It is the case of the petitioner that tender work which was awarded for construction of filter plant and ancillary works was to be completed within a period of two years from the date of letter of intimation which work, according to petitioner, was completed successfully in time and also in extended period and thereafter, petitioner Company was required to undertake second phase of tender i.e. O&M (Operation and Maintenance) of the said plant for a period of five years (60 months). Regarding this, petitioner was also informed by the respondent
- Board vide letter dated 12.9.2018 and an agreement relating to that was also executed between the parties. A copy whereof is also produced at Annexure-F. After the said formalities having been over, on 2.11.2018, petitioner Company requested to release bank guarantee in respect of completion of first phase which was completed on 31.3.2018 and performance guarantee and retention amount were thereafter released subsequently so much so that the work completion certificate was also issued by the respondent Board on 31.12.2018. Insofar it relates to first phase is concerned, on account of temporary breakdown of Page 12 of 42 Downloaded on : Sun Sep 17 01:44:32 IST 2023 NEUTRAL CITATION C/SCA/10039/2023 CAV ORDER DATED: 19/08/2023 undefined machinery and system during the course of the contract, petitioner had to provide water to several villages through tankers so that villagers may not suffer. However, respondent Board was not releasing the amount due and payable to the petitioner in respect of such two phase in time which has resultant into work being suffered and time and again petitioner had to make a request for such release of payments. As indicated in the lead petition, series of correspondences took place and meeting is also convened, but still though there was a strong inclination by the petitioner to smoothly process O&M part of the contract, but on account of difficulties pointed out in the correspondence as indicated in the memo of petition, it was not possible for petitioner to proceed in regular manner and the authority instead of reducing the grievance of the petitioner had proceeded to issue a termination order dated 3.3.2023 of O&M part of the contract and consequently forfeited the bank guarantee. In response to such order, protest letters in the form of representation/ reply were given on 16.3.2023 as well as 23.3.2023 which were followed by certain other correspondences and last representation was dated 17.4.2023. Page 13 of 42 Downloaded on : Sun Sep 17 01:44:32 IST 2023
NEUTRAL CITATION C/SCA/10039/2023 CAV ORDER DATED: 19/08/2023 undefined A copy whereof was also given to concerned Hon'ble Minister. Further, the respondent Board proceeded to issue a letter on 08.05.2023 seeking recovery of huge amount to the extent of RS.2,57,05,496/-. The exchange of correspondence went on, which led to issuance of consolidated letter dated 19.5.2023 and later on 29.3.2023. The respondent Board informed the petitioner - Company regarding initiative of action for debarment of Company for a period of three years and instructed to submit clarification within a period of ten days, and same has also been complied, but ultimately, the Board has issued impugned order on 12.5.2023 as well as 16.5.2023 debarring the petitioner for a period of three years from the date of impugned order i.e. 16.5.2023 which has constrained the petitioner to approach this Court by way of a petition under Article 226 of the Constitution of India for the reliefs which are set out in the paragraph 12. Learned advocate has submitted that all the contentions and the submissions which are to be made in the lead petition are identical and hence, requested to dispose of the present petition on the line on which lead petition is to be disposed of by common order.
Page 14 of 42 Downloaded on : Sun Sep 17 01:44:32 IST 2023
NEUTRAL CITATION C/SCA/10039/2023 CAV ORDER DATED: 19/08/2023 undefined
11. In respect of Special Civil Application No.10045 of 2023 is concerned, identical is the situation with respect to the work relating to O&M contract and in this petition also, by impugned communications dated 12.5.2023 as well as 16.5.2023, the petitioner Company is debarred for a period of three years from the date of impugned order which has resulted into filing of the petition for reliefs which are sought in paragraph 12. Since the facts and the submissions are almost similar, except the work order of different village, there appears to be no other change and present petition is relating to tender No.ID-159641 and contract is in respect of Village Jhankri, RWSS, Taluka Vyara. Here also, the letter of intimation was on the very same date i.e. 7.4.2015, basic ingredients of the tender are also same in nature and in respect of this first phase contract, which is said to have been concluded, the grievance is relating to second phase of the tender i.e. Operation & Maintenance of the said plant for a period of five years (60 months). Instead of overburdening the present order by mentioning detailed facts of the present petition, since the facts and submissions are identical in nature, as per the request made by learned Page 15 of 42 Downloaded on : Sun Sep 17 01:44:32 IST 2023 NEUTRAL CITATION C/SCA/10039/2023 CAV ORDER DATED: 19/08/2023 undefined advocates and not argued separately, present petition is also dealt with by this common order and as such, not detailed out minute circumstance since same are identical in nature.
12. Pursuant to notice having been issued vide order dated 16.6.2023 by Coordinate Bench of this Court, parties have completed their pleadings and as such, requested to hear all the three matters conjointly and accordingly upon request of learned advocates representing the parties to the proceedings, we deem it proper to hear the petitions.
13. Learned senior advocate Mr. Shalin Mehta appearing with learned advocate Mr. Abhishek M. Mehta appearing for petitioners has vehemently contended that while passing impugned order, authorities have not considered their explanation and reply which were very much on file and without assigning any proper reason, a cryptic order is passed and as such it not only suffers from vice of non-application of mind but not supported by valid reasons as well, hence same is required to be quashed and set aside.
14. It has further been submitted that no adequate Page 16 of 42 Downloaded on : Sun Sep 17 01:44:32 IST 2023 NEUTRAL CITATION C/SCA/10039/2023 CAV ORDER DATED: 19/08/2023 undefined opportunity to represent the case has been extended to the petitioners and no personal hearing was afforded and as such action on the part of respondent authority is violative of principles of natural justice. Mr. Mehta has submitted that no- doubt, prior to issuance of last communication and notice, twice meetings could take place, but when actual debarment action was sought to be initiated for a period of three years, as indicated, no personal hearing was afforded and as such at a proper stage, hearing which was to be afforded is not given, which has resulted in gross violation of principles of natural justice. It has further been submitted that it is a settled position of law that decision making process must be well supported by reasons and reasons cannot be supplemented by way of any affidavit which attempt is tried to be made and as such action and stand taken by the respondent authority is in conflict with well-settled proposition of law and hence impugned action deserves to be quashed and set aside.
15. By drawing attention to the relevant paragraphs of the petition, precisely paragraphs, 5.18, 5.19 and 5.20, it has been submitted that these assertions specifically made have not been Page 17 of 42 Downloaded on : Sun Sep 17 01:44:32 IST 2023 NEUTRAL CITATION C/SCA/10039/2023 CAV ORDER DATED: 19/08/2023 undefined disputed so far and this itself is a sufficient enough to indicate how respondent Board has acted in an arbitrary manner and for this purpose, even paragraph 9 of the reply affidavit was also brought to our notice to substantiate this contention and then Mr. Mehta has reiterated that at least, minimum requirement of assigning proper reasons is well settled proposition which ought not to have been given go-bye and therefore according to Mr. Mehta, this is a fit case in which Court may intervene.
16. Learned senior advocate Mr. Mehta has submitted that reasons are part and parcel of the principles of natural justice as by now, it is settled and as such, when there is a clear violation of principles of natural justice, irrespective of alternative remedy of arbitration, writ jurisdiction is not deprived to be invoked by petitioners and it is a settled position of law that extraordinary jurisdiction can be exercised when action is apparently violative of principles of natural justice. To substantiate his all submissions, Mr. Mehta has made reference to few decisions delivered by this Court as well as by Hon'ble Apex Court which we deem it fit to quote hereunder:- Page 18 of 42 Downloaded on : Sun Sep 17 01:44:32 IST 2023
NEUTRAL CITATION C/SCA/10039/2023 CAV ORDER DATED: 19/08/2023 undefined (1) Judgment dated 18.10.2021 passed by Division Bench of this Court in Special Civil Application No.9151 of 2020 (paragraphs 89 onwards) (2) Decision of Hon'ble Apex Court reported in (2014) 9 SCC 105 (paragraphs 16 and 21) (3) Decision of Hon'ble Apex Court reported in (2014) 14 SCC 731 (paragraphs 27 and 28.1 onwards) And by referring to these decisions, a contention is raised that a bare look at the impugned order and action clearly reflects arbitrariness and decision making process is in conflict with principles of natural justice as no reasons are assigned. The Court may kindly exercise jurisdiction under Article 226 of the Constitution of India and at least the authority may be directed to assign proper reasons to arrive at a conclusion which conclusion has far-reaching consequence upon present petitioners, hence request is made to issue appropriate writ, order or direction.
17. As against this, learned advocate Mr. Keyur Gandhi appearing on behalf of contesting respondent Board has vehemently submitted that this is a case in which petitioners may not be allowed to invoke extraordinary jurisdiction. How Page 19 of 42 Downloaded on : Sun Sep 17 01:44:32 IST 2023 NEUTRAL CITATION C/SCA/10039/2023 CAV ORDER DATED: 19/08/2023 undefined principles of natural justice are violated, petitioners have not been able to establish before the Court and prior to impugned action, series of notices and communications have been issued upon petitioners and adequate opportunity to represent the case was also given to petitioners in personal meetings which took place on 2nd September 2022 and 14th September 2022 and as such it cannot be said in any form that there is any violation of principles of natural justice, on the contrary authority has given more than adequate opportunity to represent the case.
18. Learned advocate Mr. Gandhi has also raised a preliminary objection regarding maintainability of petition not only in view of the fact that there is an alternative remedy available by way of an arbitration proceeding as contained in the contract itself but also there is serious suppression of material facts by petitioners while invoking extraordinary equitable jurisdiction. To substantiate his contention of this nature, Mr. Gandhi has drawn the attention of this Court to the assertion made in affidavit-in-reply attached with series of documents to indicate that there are several notices and intimations given to petitioner to improve upon and follow the Page 20 of 42 Downloaded on : Sun Sep 17 01:44:32 IST 2023 NEUTRAL CITATION C/SCA/10039/2023 CAV ORDER DATED: 19/08/2023 undefined contractual obligations. According to learned advocate Mr. Gandhi, O&M contract commenced from 1.9.2018 and work related to it was found to be not satisfactory by the authority and vide communications dated 1.6.2020, 5.6.2020, 8.2.2021, 7.1.2023 and similar such communications were sent to petitioner to indicate that work is not being properly undertaken and such communications are attached with the petition compilation on page 547 onwards and so much so that on 2.9.2022, review meeting also conducted in which the very petitioner through its representative Mr. Ashok Patel did appear, deliberated and assured that shortly, regular flow of water will be provided to the villages and by pointing out minutes of the meeting on page 564, a contention is raised that it is not that petitioner is not aware about said infirmity which is reflecting at his instance. Yet another minutes of meeting dated 14.9.2022 was also pointed out by referring to page 566 and then successive communications have been brought to our notice to contend that though enough opportunities have been given, petitioner did not adhere to though specifically assured, which ultimately led the authority rather compelled the Page 21 of 42 Downloaded on : Sun Sep 17 01:44:32 IST 2023 NEUTRAL CITATION C/SCA/10039/2023 CAV ORDER DATED: 19/08/2023 undefined authority to initiate action of debarment. It has further been contended that in subsequent communications from August 2022, there are as many as three letters written to petitioner indicating that if improvement will not take place, action of debarment would be taken and even final notice on 5.1.2023 was also given to the petitioner, reflecting on page 579. Hence, it has been contended that when petitioner has miserably failed to observe the conditions of contract by not carrying out proper work though informed and warned, ultimately authority was compelled to take appropriate action and as such it is absolutely incorrect on the part of petitioner to contend that there is violation of any principle of natural justice.
19. Learned advocate Mr. Gandhi has submitted that violation of principle of natural justice ipso facto may not be a ground to set at naught the action unless serious prejudice is being established and here, on the contrary, prejudice is not only to the public exchequer but also the people at large. On account of petitioner's inaction, suffering has taken place to large number of people in surrounding several villages. So much so for quite some time, number of villages as indicated in the Page 22 of 42 Downloaded on : Sun Sep 17 01:44:32 IST 2023 NEUTRAL CITATION C/SCA/10039/2023 CAV ORDER DATED: 19/08/2023 undefined communication were deprived of water facility and still petitioner wants that authority should observe personal hearing which was not even sought for. Mr. Gandhi has submitted that all these particulars of communications and meetings have been suppressed in the petition and had it been projected properly, which are material information, probably, the Court would not have entertained the petition at all and that being so, conduct on the part of petitioner is sufficient enough to oust the petitioner from equitable consideration.
20. Learned advocate Mr. Gandhi has further submitted that question of personal hearing would not arise since same is not contemplated in the contract itself and further same was not sought for by the petitioner at any point of time. In addition to it, it has been submitted that hearing and opportunity to represent was specifically given on same irregularities in two meetings, i.e. meeting dated 2.9.2022 as well as 14.9.2022, wherein representatives of petitioner were very much present. On the contrary, they had assured to improve upon, but same was not done. Hence, the authority was thoroughly justified in taking action against the petitioner.
Page 23 of 42 Downloaded on : Sun Sep 17 01:44:32 IST 2023
NEUTRAL CITATION C/SCA/10039/2023 CAV ORDER DATED: 19/08/2023 undefined
21. Apart from this, learned advocate Mr. Gandhi has reiterated that all these issues can well be examined by authority which is specifically provided in the contract itself which was readily accepted by the petitioner and as such now cannot turn around and on hyper-technicality invoke extraordinary equitable jurisdiction. To substantiate his contention, learned advocate Mr. Gandhi has also drawn our attention to the contract which has been executed between the parties and has submitted that respondent Board has clear authority to initiate action and for that purpose, clause No.(3) on page 165 is referred to by learned advocate Mr. Gandhi and then has made a further reference to an arbitration clause available to the petitioner to redress any such kind of grievance which is reflecting on page 185. By drawing attention to this clause, it has been submitted that when petitioner is not made remedy-less, in a situation like this where serious of infirmities are reflecting at the instance of petitioner, including conduct, proper course would be to allow the petitioner to avail this remedy of redressal through arbitration mechanism. Had there been any blatant violation of principles of natural justice, Page 24 of 42 Downloaded on : Sun Sep 17 01:44:32 IST 2023 NEUTRAL CITATION C/SCA/10039/2023 CAV ORDER DATED: 19/08/2023 undefined probably, petitioner ought to have been allowed to invoke extraordinary jurisdiction. But, this is not a fit case in which petitioner may be allowed to invoke in aforesaid peculiar background of facts. To strengthen his submission, learned advocate Mr. Gandhi has made a reference to few decisions. Though compilation is tendered on record, consisting of 7 decisions, but Mr. Gandhi has specifically made a reference to a decision reported in (2012) 11 SCC 257 (paragraphs 9, 15, 30, 36, 32, 37 and 38) and decision reported in (2008) 9 SCC 31 (Paragraphs 31, 36 and 39) and thereby contended that Hon'ble Court may not exercise equitable jurisdiction in a situation like this, wherein petitioner was quite aware about the fact of contemplation of debarment action against him, hence requested to dismiss the petition.
22. Learned advocate Mr. Gandhi has further submitted that in view of the aforesaid peculiar background of facts, judgments which have been tried to be relied upon of Division Bench of this Court would not be applied here, more particularly when same are in different contextual facts, hence petition being merit-less deserves to be dismissed and apart from that has substantially Page 25 of 42 Downloaded on : Sun Sep 17 01:44:32 IST 2023 NEUTRAL CITATION C/SCA/10039/2023 CAV ORDER DATED: 19/08/2023 undefined canvassed before us that proper course for petitioner is to avail arbitration proceedings since Arbitral Tribunal is very much contemplated and well accepted by petitioner in terms of the contract.
23. As against this, in rejoinder, learned senior advocate Mr. Mehta has submitted that in the contract itself, action of debarment is not contemplated. At the best, it is a clause where authority can seek liquidated damages or at the best put the contract in abeyance for 3 years from the date fixed in all such cases. So, by referring to clause (3), Mr. Mehta has submitted that this debarment action is impermissible in terms of the contract also. Mr. Mehta has placed reliance on paragraph 40 of the decision delivered by the Division Bench of this Court in case of Special Civil Application No.9151 of 2020 and has submitted that despite arbitration clause is very much available, Court can entertain petition since decision making process is seriously in conflict with settled principle of law. By referring to paragraph 51 from the decision delivered in Special Civil Application No.1041 of 2018, it has been contended that case is squarely covered and it is undisputed that no personal hearing Page 26 of 42 Downloaded on : Sun Sep 17 01:44:32 IST 2023 NEUTRAL CITATION C/SCA/10039/2023 CAV ORDER DATED: 19/08/2023 undefined was given after last notice, which is said to have been given by respondent Board. So far as prejudice is concerned, it has been submitted that there is absolute prejudice to the petitioner on account of non-assignment of proper reasons and non- compliance of principles of natural justice and for canvassing such issue, learned senior advocate Mr. Mehta has made a reference to paragraphs 32 and 33 of the decision reported in (2014) 9 SCC 105.
24. In respect of issue which has been raised by learned advocate for the respondent that petitioner has suppressed material facts by not projecting to the earlier letters, but to meet with the same, Mr. Mehta has submitted that all documents need not be produced and material documents centering around the controversy were very much produced by petitioner and for that purpose, few pages have been referred to and has contended that even final notice dated 5.1.2023 is also attached by petitioner and as such simply because all letters have not been produced, cannot treated as suppression of material facts. On the contrary, show cause notice issued is not indicating any fact about debarment of particular period. Had Page 27 of 42 Downloaded on : Sun Sep 17 01:44:32 IST 2023 NEUTRAL CITATION C/SCA/10039/2023 CAV ORDER DATED: 19/08/2023 undefined there been so, petitioner would have explained and met with the same and since non-granting of opportunity has resulted into deprivation of petitioner of making effective representation, action is in flagrant violation of principles of natural justice. As a result of this, contention is raised that respondent Board has not observed well recognized principle of natural justice. Non- assigning of reasons and its efficacy is already pointed out and as such reiteration thereof is not required and as such Mr. Mehta has submitted that action deserves to be quashed and set aside only on the ground of violation of principles of natural justice.
25. Having heard learned advocates appearing for the parties and having gone through the material on record, few circumstances deserve consideration before coming to ultimate conclusion.
26. Though both sides have placed their submissions at length even on merit, but after hearing one issue which is not possible to be confronted by learned counsels is that orders under challenge, i.e. order dated 12.5.2023 as well as 16.5.2023, are Page 28 of 42 Downloaded on : Sun Sep 17 01:44:32 IST 2023 NEUTRAL CITATION C/SCA/10039/2023 CAV ORDER DATED: 19/08/2023 undefined reflecting no reasons. A perusal of the impugned orders at Annexure-A (collectively), no-doubt reflects in subject column series of conversations, but then ultimately independent reasons in the said decision making process are not forthcoming. The decision making process time and again, as indicated by Hon'ble the Apex Court in catena of decisions, should be backed by valid and detailed reasons and reasons are now recognized as a part of principles of natural justice and as such when going through the entire material in consonance with the impugned orders, we feel it necessary to quote that said impugned orders are not backed by any reasons and what transpired in the mind of decision making authority is also not forthcoming as is evident, and as such at this stage, we remind ourselves to the well- recognized principle of assignment of reasons in the decision making process which is indicated by following decisions:- (1) Hon'ble the Apex Court in the case of Union of India and others v. Mudrika Singh reported in 2021 SCC OnLine 1173 has held that recording of reasons is necessary rather it is violative of principles of natural justice and observed in paragraph-39 as under:
"39. Following the decision in Som Datt Datta (supra), the Constitution Bench in S N Mukherjee (supra) considered the Page 29 of 42 Downloaded on : Sun Sep 17 01:44:32 IST 2023 NEUTRAL CITATION C/SCA/10039/2023 CAV ORDER DATED: 19/08/2023 undefined provisions of the Army Act and concluded that none of the provisions, either expressly or by necessary implication, confer a duty on the aforesaid authorities to furnish reasons. Justice S C Agrawal, speaking on behalf of the Constitution Bench, analysed the provisions of the Army Act 1950 on the anvil of the principles of natural justice:
"36. Reasons, when recorded by an administrative authority in an order passed by it while exercising quasi-judicial functions, would no doubt facilitate the exercise of its jurisdiction by the appellate or supervisory authority. But the other considerations, referred to above, which have also weighed with this Court in holding that an administrative authority must record reasons for its decision, are of no less significance. These considerations show that the recording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decision making. The said purpose would apply equally to all decisions and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. In our opinion, therefore, the requirement that reasons be recorded should govern the decisions of an administrative authority exercising quasi-judicial functions irrespective of the fact whether the decision is subject to appeal, revision or judicial review. It may, however, be added that it is not required that the reasons should be as elaborate as in the decision of a court of law. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge.
[...]
39. The object underlying the rules of natural justice ―is to prevent miscarriage of justice‖ and secure ―fair play in action‖. As pointed out earlier the requirement about recording of reasons for its decision by an administrative authority exercising quasi- judicial functions achieves this object by excluding chances of arbitrariness and ensuring a degree of fairness in the process of decision-making. Keeping in view the expanding horizon of the principles of natural justice, we are of the opinion, that the requirement to record reason can be regarded as one of the principles of natural justice which govern exercise of power by administrative authorities. The rules of natural justice are not embodied rules..........."Page 30 of 42 Downloaded on : Sun Sep 17 01:44:32 IST 2023
NEUTRAL CITATION C/SCA/10039/2023 CAV ORDER DATED: 19/08/2023 undefined (2) Paragraphs 13 and 14 of the judgment rendered in the case of Commissioner of Income Tax- v. Rashtradoot (HUF) reported in (2019) 5 SCC 149 read as under:-
13. This Court has consistently laid emphasis that every order/judgment, which decides the lis between the parties, must contain the reason(s)/ground(s) for arriving at a particular conclusion. Indeed, what is decisive for deciding the case is not the conclusion alone but the reason(s)/ground(s) assigned in support of such conclusion, which results in reaching to such conclusion.
14. In order to decide as to whether the impugned order is legally sustainable or not, the Appellate Court is entitled to know as to what impelled the Court below to pass such order in favour of one party and against the aggrieved party. We find that this requirement is missing in the impugned order of this case and hence the interference is called for. (See− State of Maharashtra vs. Vithal Rao Pritirao Chawan, (1981) 4 SCC 129, Jawahar Lal Singh vs. Naresh Singh & Ors., (1987) 2 SCC 222, State of U.P. vs. Battan & Ors., (2001) 10 SCC 607, Raj Kishore Jha vs. State of Bihar & Ors., (2003) 11 SCC 519 and State of Orissa vs. Dhaniram Luhar, (2004) 5 SCC 568).
(3) Paragraphs 9 and 10 of the decision in the case of State of Orissa and others v. Chandra Nandi reported in (2019) 4 SCC 357 read as under:-
9. The need to remand the case to the High Court has occasioned because from the perusal of the impugned order, we find that it is an unreasoned order. In other words, the High Court neither discussed the issues arising in the case, nor dealt with any of the submissions urged by the parties and nor assigned any reason as to why it has allowed the writ petition and granted the reliefs to the writ petitioner which were declined by the Tribunal.
10. This Court has consistently laid down that every judicial or/and quasi−judicial order passed by the Page 31 of 42 Downloaded on : Sun Sep 17 01:44:32 IST 2023 NEUTRAL CITATION C/SCA/10039/2023 CAV ORDER DATED: 19/08/2023 undefined Court/Tribunal/Authority concerned, which decides the lis between the parties, must be supported with the reasons in support of its conclusion. The parties to the lis and so also the appellate/revisionary Court while examining the correctness of the order are entitled to know as to on which basis, a particular conclusion is arrived at in the order. In the absence of any discussion, the reasons and the findings on the submissions urged, it is not possible to know as to what led the Court/Tribunal/Authority for reaching to such conclusion. (See − State of Maharashtra vs. Vithal Rao Pritirao Chawan, (1981) 4 SCC 129, Jawahar Lal Singh vs. Naresh Singh & Ors., (1987) 2 SCC 222, State of U.P. vs. Battan & Ors., (2001) 10 SCC 607, Raj Kishore Jha vs. State of Bihar & Ors., (2003) 11 SCC 519 and State of Orissa vs. Dhaniram Luhar, (2004) 5 SCC 568).
Keeping the aforesaid proposition of law in mind, it is prima facie established by learned counsel appearing on behalf of petitioners that since order is unreasoned, same deserves to be quashed and we say so that it requires to be quashed on the basis of aforesaid well recognized proposition of law.
27. Next issue about making a request for giving personal hearing, we are not impressed by such submission of learned advocate appearing on behalf of petitioners that neither terms of the contract are envisaging any such opportunity of personal hearing nor admittedly, same is requested so far by petitioners at any point of time, more particularly during the personal visits and conversations and series of correspondences and we found that with respect to these infirmities for which action is Page 32 of 42 Downloaded on : Sun Sep 17 01:44:32 IST 2023 NEUTRAL CITATION C/SCA/10039/2023 CAV ORDER DATED: 19/08/2023 undefined initiated, opportunity of personal representation was already given and which opportunity is already availed by petitioners and as such question of grant of personal hearing in this peculiar background of facts we are not inclined to consider. At this stage, we may refer to certain observations made by Hon'ble the Apex Court in paragraphs 13, 15 and 21 of a judgment in the case of Oriental Bank of Commerce and Another v. R.K. Uppal, reported in (2011) 8 SCC 695, wherein it has been held that personal hearing cannot be a matter of right. Paragraphs are reproduced hereunder:-
"13. This is what this Court said (at page 464) in Mahendra Kumar Singhal:
"2. Heard counsel on both sides. The respondent was visited with the punishment of dismissal from service. He filed a departmental appeal which came to be dismissed, whereupon he moved the High Court by way of a writ petition. The High Court quashed the order of the appellate authority on the ground that no personal hearing was given before the appeal was dismissed. The matter was, therefore, remitted to the appellate authority to dispose of the appeal after hearing the delinquent personally. It is against the said order that the present appeal is filed.
3. No rule has been brought to our attention which requires the appellate authority to grant a personal hearing. The rule of natural justice does not necessarily in all cases confer a right of audience at the appellate stage. That is what this Court observed in F.N. Roy v. Collector of Customs, Calcutta [1957 SCR 1151 = AIR 1957 SC 648]. We, therefore, think that the impugned order is not valid. Our attention was, however, drawn to the decision in Mohinder Singh Gill v. Chief Election Commissioner, New Delhi [(1978) 1 SCC 405] wherein observation is made in regard to the right of hearing. But that was not a case of a departmental inquiry, it was one emanating from Article 324 of the Constitution. In our view, therefore, those observations are not Page 33 of 42 Downloaded on : Sun Sep 17 01:44:32 IST 2023 NEUTRAL CITATION C/SCA/10039/2023 CAV ORDER DATED: 19/08/2023 undefined pertinent to the facts of this case."
15. This Court held (at pages 74-75) as under :
"5. The High Court has primarily considered the question as to whether denying an opportunity to the appellant to be heard before his prayer to dispense with the deposit of the penalty is rejected, violates and contravenes the principles of natural justice. In that connection, several judgments of this Court have been referred to. It need not be pointed out that under different situations and conditions the requirement of compliance of the principle of natural justice vary. The courts cannot insist that under all circumstances and under different statutory provisions personal hearings have to be afforded to the persons concerned. If this principle of affording personal hearing is extended whenever statutory authorities are vested with the power to exercise discretion in connection with statutory appeals, it shall lead to chaotic conditions. Many statutory appeals and applications are disposed of by the competent authorities who have been vested with powers to dispose of the same. Such authorities which shall be deemed to be quasi-judicial authorities are expected to apply their judicial mind over the grievances made by the appellants or applicants concerned, but it cannot be held that before dismissing such appeals or applications in all events the quasi-judicial authorities must hear the appellants or the applicants, as the case may be. When principles of natural justice require an opportunity to be heard before an adverse order is passed on any appeal or application, it does not in all circumstances mean a personal hearing. The requirement is complied with by affording an opportunity to the person concerned to present his case before such quasi-judicial authority who is expected to apply his judicial mind to the issues involved. Of course, if in his own discretion if he requires the appellant or the applicant to be heard because of special facts and circumstances of the case, then certainly it is always open to such authority to decide the appeal or the application only after affording a personal hearing. But any order passed after taking into consideration the points raised in the appeal or the application shall not be held to be invalid merely on the ground that no personal hearing had been afforded. This is all the more important in the context of taxation and revenue matters. When an authority has determined a tax liability or has imposed a penalty, then the requirement that before the appeal is heard such tax or penalty should be deposited cannot be held to be unreasonable as already pointed out above. In the case of Shyam Kishore v. Municipal Corpn. of Delhi [(1993) 1 SCC 22] it has been held by this Court that such requirement cannot be held to be harsh or violative of Article 14 of the Constitution so as to declare the requirement of pre-deposit itself as unconstitutional.
In this background, it can be said that normal rule is that before filing the appeal or before the appeal is heard, the person Page 34 of 42 Downloaded on : Sun Sep 17 01:44:32 IST 2023 NEUTRAL CITATION C/SCA/10039/2023 CAV ORDER DATED: 19/08/2023 undefined concerned should deposit the amount which he has been directed to deposit as a tax or penalty. The non-deposit of such amount itself is an exception which has been incorporated in different statutes including the one with which we are concerned. Second proviso to sub-section (1) of Section 4-M says in clear and unambiguous words that an appeal against an order imposing a penalty shall not be entertained unless the amount of the penalty has been deposited by the appellant. Thereafter the third proviso vests a discretion in such appellate authority to dispense with such deposit unconditionally or subject to such conditions as it may impose in its discretion taking into consideration the undue hardship which it is likely to cause to the appellant. As such it can be said that the statutory requirement is that before an appeal is entertained, the amount of penalty has to be deposited by the appellant; an order dispensing with such deposit shall amount to an exception to the said requirement of deposit. In this background, it is difficult to hold that if the appellate authority has rejected the prayer of the appellant to dispense with the deposit unconditionally or has dispensed with such deposit subject to some conditions without hearing the appellant, on perusal of the petition filed on behalf of the appellant for the said purpose, the order itself is vitiated and is liable to be quashed being violative of the principles of natural justice.
21. The Single Judge of the High Court referred to decisions of this Court in Mahendra Kumar Singhal3, Jesus Sales Corporation4 and Ganesh Santa Ram Sirur5 and also the decision of Full Bench of Punjab and Haryana High Court in Ram Niwas Bansal2. The Single Judge also referred to few decisions of other High Courts and followed the proposition propounded by this 7 2006 LAB. I.C. 1384 Court in Mahendra Kumar Singhal3 viz; that in the absence of the specific requirement by the relevant rules, there is no right to a personal hearing at the appellate stage and the rules of natural justice do not require that in all cases a right of audience should be provided at the appellate stage."
28. The record indicates that time and again, petitioners had been given an instruction and by way of several letters, petitioners had been informed to rectify and to complete the work as same was seriously depriving such villages of benefits for which work had been given. These notices and Page 35 of 42 Downloaded on : Sun Sep 17 01:44:32 IST 2023 NEUTRAL CITATION C/SCA/10039/2023 CAV ORDER DATED: 19/08/2023 undefined correspondences have been furnished to the petitioners undisputedly and so much so that on account of these issues, twice meetings had also taken place. In addition to several correspondences, meeting was convened on 2.9.2022, reflecting on page 564, i.e. review meeting which was scheduled at 11 O'clock at office, in which one of the representatives of petitioners namely Mr. Ashok Patel remained personally present and was very much posted with facts that as many as 29 villages of Tapi district are badly affected on account of non-supply of water. There are 23 villages of Jhankhari Juth which have been badly affected and there are further 20 villages of Valod Juth which were also adversely affected and as such, it is not the case that petitioners were unaware about this damage which has taken place on account of their infirmity and possible action against them.
29. Further meeting was also scheduled on 14.9.2022, reflecting on page 566, wherein in the said review meeting, not only one representative but there are as many as three representatives of petitioners i.e. M/s. Ranjit Buildcon Ltd., Ahmedabad did remain present undisputedly and were quite Page 36 of 42 Downloaded on : Sun Sep 17 01:44:32 IST 2023 NEUTRAL CITATION C/SCA/10039/2023 CAV ORDER DATED: 19/08/2023 undefined aware about the fact that on account of their inaction for one reason or the other, villages have been badly affected and at this stage, it is also to be noticed that knowing ground reality, petitioners have assured to restore the work and supply water as fast as possible. So, when all these circumstances are brought to our notice, it cannot be said in our opinion that petitioners were not extended any opportunity of hearing or personal representation in any form, especially when possible action of debarment was alredy put to notice and for which personally they have represented and as such, in a situation like this, request for personal hearing we are not inclined to consider and this we say so on account of the proposition that principles of natural justice cannot be treated as an unruly horse in any form. So, when more than 15 such communications were addressed by the respondent Board to the petitioners about their infirmities and possible action against them and petitioners have been given twice opportunity of personal representation, as indicated above, decision making process cannot be said to be violative on account of non-granting of any personal hearing. We are inclined to interfere with only on Page 37 of 42 Downloaded on : Sun Sep 17 01:44:32 IST 2023 NEUTRAL CITATION C/SCA/10039/2023 CAV ORDER DATED: 19/08/2023 undefined account of one solitary circumstance that ultimate decision making process is not reflecting any reason and as such in a situation like this, it would be cumbersome for the Court to examine and analyze as to what was ultimately passing in the mind of the authority to take final decision. Hence, on this solitary ground only, we are of the opinion that matter is required to be relegated to the authority for proper assignment of reasons.
30. Since twice personal meeting had taken place, representatives of petitioners were also very much present and projected their stand and it is thereafter impugned action was taken and therefore, in a situation like this, extending an opportunity of personal hearing would be of no consequence and as held by series of decisions, principle of natural justice cannot be extended to that extent whereby opportunity would be repeatedly given. Hon'ble the Apex Court in a case of The Chairman, Board of Mining Examination and Chief Inspector of Mines and Another v. Ramjee, reported in (1977) 2 SCC 256 has held that natural justice is not an unruly horse, no lurking land mine, nor a judicial cure-all. Observations contained in Page 38 of 42 Downloaded on : Sun Sep 17 01:44:32 IST 2023 NEUTRAL CITATION C/SCA/10039/2023 CAV ORDER DATED: 19/08/2023 undefined paragraph-13 of the said decision we deem it fit to quote hereunder:-
"13. The last violation regarded as a lethal objection is that Board did not enquire of the respondent, independently of the one done by the Regional Inspector. Assuming it to be necessary, here the respondent has, in the form of an appeal against the report of the Regional Inspector, sent his explanation to the Chairman of the Board. He has thus been heard and compliance with Reg. 26, in the circumstances, is complete. Natural justice. is no unruly horse, no lurking land mine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. 'Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating. We can neither be finical nor fanatical but should be flexible yet firm in this jurisdiction. No man shall be hit below the belt--that is the conscience of the matter.
Keeping in view the fact that said principle has been also considered in a later judgment as well in the case of Dharampal Satyapal Limited v. Deputy Commissioner of Central Excise, Gauhati and others, reported in (2015) 8 SCC 519, we are of the clear opinion that petitioners are not entitled to personal hearing in the peculiar background of facts as indicated above, especially when twice in personal meetings held on 2.9.2022 and 14.9.2022, opportunity was given to the petitioners specifically and availed also. We are of setting aside the order only on the ground of non-assignment of reasons without Page 39 of 42 Downloaded on : Sun Sep 17 01:44:32 IST 2023 NEUTRAL CITATION C/SCA/10039/2023 CAV ORDER DATED: 19/08/2023 undefined expressing any opinion on any other issues and as such, for this limited purpose, we deem it proper to allow the petitions in part.
31. At this stage, since we are remanding the matter back to the authority for this limited purpose of assigning reasons, we express no opinion on merit on any other contentions and we express no observation or view what weighed with the authority to take impugned action against the petitioners. It is independently open for the authority to assign proper reasons for arriving at a particular conclusion afresh while passing the order on the basis of material already on record. As we have clarified that since personal representation was already given on contemplated action, authority need not give fresh opportunity of personal hearing. Any observation of us may not unduly influence the authority in taking a fresh decision for assigning proper reasons and hence we desist ourselves to express opinion on any other contentions which have been raised before us at this stage. Hence, on this limited issue, keeping in view the aforesaid issue, we may pass following order which would meet the ends of justice:- Page 40 of 42 Downloaded on : Sun Sep 17 01:44:32 IST 2023
NEUTRAL CITATION C/SCA/10039/2023 CAV ORDER DATED: 19/08/2023 undefined ORDER (1) Impugned communications/ orders dated 12.5.2023 as well as 16.5.2023 are hereby quashed and set aside with a consequential direction upon respondent authority, i.e. Gujarat Water Supply & Sewage Board Board (respondent No.2 herein) to pass a fresh order keeping in mind the material which is already available on record and to assign proper reasons to an ultimate conclusion.
(2) We clarify that since we have not expressed any opinion on merit either on contentions or any decision related to it, it is independently left it open to the authority to pass a fresh reasoned order on the basis of the material which is already available on record. (3) Aforesaid exercise shall be undertaken by respondent Board within a period TWO WEEKS from date of receipt of writ of this Court.
32. With aforesaid observations and directions, present petitions stand PARTLY ALLOWED at this stage, with no order as to costs.
Page 41 of 42 Downloaded on : Sun Sep 17 01:44:32 IST 2023
NEUTRAL CITATION C/SCA/10039/2023 CAV ORDER DATED: 19/08/2023 undefined
33. Since main petitions are disposed of, pending respective Civil Applications for stay also stand DISPOSED OF.
Writ to be sent forthwith.
Sd/-
(ASHUTOSH SHASTRI, J) Sd/-
(DIVYESH A. JOSHI,J) OMKAR Page 42 of 42 Downloaded on : Sun Sep 17 01:44:32 IST 2023