NEUTRAL CITATION
C/SCA/18286/2023 ORDER DATED: 01/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18286 of 2023
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VASU TEKCHAND VYAS
Versus
STATE OF GUJARAT
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Appearance:
MR JAY N SHAH(10668) for the Petitioner(s) No. 1
MR AYAAN PATEL, AGP for the Respondent(s) No. 1,2,3,4,5
DS AFF.NOT FILED (N) for the Respondent(s) No. 1,2,3,4,5
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 01/11/2023
ORAL ORDER
1. By way of the present petition, the petitioner herein has prayed for the following reliefs:
"(a) This Hon'ble Court may be pleased to admit and allow this petition;
(b) This Hon'ble Court may be pleased to issue appropriate writ, order or direction, directing the respondents to produce the records before this Hon'ble Court leading them to take action of putting the status of the vehicle in question as blacklisted on 'Vahan Portal' of the vehicle bearing Creta Car No.GJ-12-DG-7465;
(c) This Hon'ble Court may be pleased to issue appropriate writ, order or direction to quash and set aside the action of the respondent No.5 - RTO of showing the status of vehicle bearing Creta Car No.GJ- 12-DG-7465 as blacklisted from 'Vahan Portal', which is at Annexure- A.
(d) Pending admission final hearing and disposal of this petition, direct the respondents to remove the status of the vehicle as blacklisted from 'Vahan Portal' of vehicle bearing Creta Car No.GJ-12- DG-7465 which is at Annexure - A.
(e) Grant such other and further relief as thought fit in the interest of justice."Page 1 of 6 Downloaded on : Tue Nov 07 20:33:39 IST 2023
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2. Heard Mr. Jay N. Shah, learned advocate appearing for the petitioner and Mr. Ayaan Patel, learned AGP appearing for the respondents.
3. The petitioner herein is aggrieved by the action undertaken by the respondent No.5 - RTO of showing the status of vehicle being Creta Car No.GJ-12-DG-7465 blacklisted on the 'Vahan Portal', which is owned by the petitioner.
4. Mr. Jay N. Shah, learned advocate appearing for the petitioner, submitted that the petitioner is the owner of the vehicle being Creta Car No.GJ-12-DG-7465. Mr. Shah, learned advocate, submitted that the action of the respondent authority of blacklisting the vehicle-in-question on 'Vahan Portal' is without granting opportunity of hearing and the same is against the cardinal principles of natural justice.
4. Mr. Ayaan Patel, learned Assistant Government Pleader appearing for the respondent-State, was not in a position to controvert the aforesaid submissions advanced by Mr. Shah, learned advocate appearing for the petitioner.
5. At this stage it is apposite to refer to the decision of the Page 2 of 6 Downloaded on : Tue Nov 07 20:33:39 IST 2023 NEUTRAL CITATION C/SCA/18286/2023 ORDER DATED: 01/11/2023 undefined Hon'ble Supreme Court in the case of Dharampal Satyapal Ltd.
v/s. Deputy Commissioner of Central Excise reported in (2015) 8 SCC 519, relevant para-27 of the order reads thus:
"27. From the aforesaid discussion, it becomes clear that the opportunity to provide hearing before making any decision was considered to be a basic requirement in the Court proceeding. Later on, this principle was applied to other quasi-judicial authorities and other tribunals and ultimately it is now clearly laid down that even in the administrative actions, where the decision of the authority may result in civil consequences, a hearing before taking a decision is necessary. It was, thus, observed in A.K. Kraipak's case (supra) that if the purpose of rules of natural justice is to prevent miscarriage of justice, one fails to see how these rules should not be made available to administrative inquiries."
5.1 In the case of UMC Technologies Private Limited v/s. Food Corporation of India and Anr. reported in AIR 2021 SC (CIVIL) 833, relevant Paras-13, 14, 16, 17, 18, 19 and 26 reads thus:
"13. At the outset, it must be noted that it is the first principle of civilised jurisprudence that a person against whom any action is sought to be taken or whose right or interests are being affected should be given a reasonable opportunity to defend himself. The basic principle of natural justice is that before adjudication starts, the authority concerned should give to the affected party a notice of the case against him so that he can defend himself. Such notice should be adequate and the grounds necessitating action and the penalty/action proposed should be mentioned specifically and unambiguously. An order travelling beyond the bounds of notice is impermissible and without jurisdiction to that extent. This Court in Nasir Ahmad v. Assistant Custodian General, Evacuee Property, Lucknow and Anr. , 1 has held that it is essential for the notice to specify the particular grounds on the basis of which an action is proposed to be taken so as to enable the notice to answer the case against him. If these conditions are not satisfied, the person cannot be said to have been granted any reasonable opportunity of being heard.
14. Specifically, in the context of blacklisting of a person or an entity by the state or a state corporation, the requirement of a valid, particularized and unambiguous show cause notice is particularly crucial due to the severe consequences of blacklisting and the stigmatization that accrues to the person/entity being blacklisted. Here, it may be Page 3 of 6 Downloaded on : Tue Nov 07 20:33:39 IST 2023 NEUTRAL CITATION C/SCA/18286/2023 ORDER DATED: 01/11/2023 undefined gainful to describe the concept of blacklisting and the graveness of the consequences occasioned by it. Blacklisting has the effect of denying a person or an entity the privileged opportunity of entering into government contracts. This privilege arises because it is the State who is the counterparty in government contracts and as such, every eligible person is to be afforded an equal opportunity to participate in such contracts, without arbitrariness and discrimination. Not only does blacklisting takes away this privilege, it also tarnishes the blacklisted person's reputation and brings the person's character into question. Blacklisting also has long-lasting civil consequences for the future business prospects of the blacklisted person.
16. The severity of the effects of blacklisting and the resultant need for strict observance of the principles of natural justice before passing an order of blacklisting were highlighted by this Court in Erusian Equipment & Chemicals Ltd. v. State of West Bengal in the following terms:
"12. ... The order of blacklisting has the effect of depriving a person of equality of opportunity in the matter of public contract. A person who is on the approved list is unable to enter into advantageous relations with the Government because of the order of blacklisting. A person who has been dealing with the Government in the matter of sale and purchase of materials has a legitimate interest or expectation. When the State acts to the prejudice of a person it has to be supported by legality. XXX XXX
15. ... The blacklisting order involves civil consequences. It casts a slur. It creates a barrier between the persons blacklisted and the Government in the matter of transactions. The black lists are instruments of coercion.
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20. Blacklisting has the effect of preventing a person from the privilege and advantage of entering into lawful relationship with the Government for purposes of gains. The fact that a disability is created by the order of blacklisting indicates that the relevant authority is to have an objective satisfaction. Fundamentals of fair play require that the person concerned should be given an opportunity to represent his case before he is put on the blacklist."
17. Similarly, this Court in Raghunath Thakur v. State of Bihar, struck down an order of blacklisting for future contracts on the ground of non-observance of the principles of natural justice. The relevant extract of the judgment in that case is as follows:
"4. ... [I]t is an implied principle of the rule of law that any order having civil consequences should be passed only after following the principles of natural justice. It has to be realised that blacklisting any person in respect of business ventures has civil consequence for the future business of the person concerned in any event. Even if the rules do not express so, it is an elementary principle of natural justice that parties affected by any order should have Page 4 of 6 Downloaded on : Tue Nov 07 20:33:39 IST 2023 NEUTRAL CITATION C/SCA/18286/2023 ORDER DATED: 01/11/2023 undefined right of being heard and making representations against the order."
18. This Court in Gorkha Security Services v. Government (NCT of Delhi) and Ors. has described blacklisting as being equivalent to the civil death of a person because blacklisting is stigmatic in nature and debars a person from participating in government tenders thereby precluding him from the award of government contracts. It has been held thus:
"16. It is a common case of the parties that the blacklisting has to be preceded by a show-cause notice. Law in this regard is firmly grounded and does not even demand much amplification. The necessity of compliance with the principles of natural justice by giving the opportunity to the person against whom action of blacklisting is sought to be taken has a valid and solid rationale behind it. With blacklisting, many civil and/or evil consequences follow. It is described as "civil death" of a person who is foisted with the order of blacklisting. Such an order is stigmatic in nature and debars such a person from participating in government tenders which means precluding him from the award of government contracts."
19. In light of the above decisions, it is clear that a prior show cause notice granting a reasonable opportunity of being heard is an essential element of all administrative decision-making and particularly so in decisions pertaining to blacklisting which entail grave consequences for the entity being blacklisted. In these cases, furnishing of a valid show cause notice is critical and a failure to do so would be fatal to any order of blacklisting pursuant thereto.
26. In view of our conclusion that the blacklisting order dated 09.01.2019 passed by the Corporation is contrary to the principles of natural justice, it is unnecessary for us to consider the other contentions of the learned counsel for the appellant. Having regard to the peculiar facts and circumstances of the present case, we deem it appropriate not to remit the matter to the Corporation for fresh consideration."
6. Considering the ratio laid down by the Hon'ble Apex Court, as referred above, in the facts of the present case, the action undertaken by the respondent No.5 - RTO of blacklisting the vehicle of the petitioner being Creta Car No.GJ-12-DG-7465 on 'Vahan Portal' is quashed and set aside. However, liberty is reserved for the respondent authority to initiate appropriate proceedings after issuance of show cause notice and after Page 5 of 6 Downloaded on : Tue Nov 07 20:33:39 IST 2023 NEUTRAL CITATION C/SCA/18286/2023 ORDER DATED: 01/11/2023 undefined following due process of law.
9. With the aforesaid observations, the present petition stands allowed to the aforesaid extent.
10. Direct service is permitted.
(VAIBHAVI D. NANAVATI,J) NEHA Page 6 of 6 Downloaded on : Tue Nov 07 20:33:39 IST 2023