Andhra Pradesh High Court - Amravati

The Nish Elga Technologies Pvt Ltd vs The State Of Ap on 17 November, 2023

   IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI

        HONOURABLE SRI JUSTICE SUBBA REDDY SATTI

                     WRIT PETITION No.7882 of 2023


   M/s The Nish Elga Technologies Private Ltd.,
   MDR Arcade, Plot No.56 to 59, 2nd Floor, above
   Sweet Heart Hotel, Sri Malini Colony,
   Tarbund, Secunderabad, State of Telangana,
   represented by its Director G.Bhupathi Raju,
   S/o Ashok Kumar, aged 40 years
                                                           ... Petitioner.
                   Versus

   The State of Andhra Pradesh, Represented by
   is    Principal    Secretary   (Endowments
   Department),     Secretariat  Buildings  at
   Velagapudi, Guntur District, Andhra Pradesh
   and four others.
                                            ... Respondents.


Counsel for the petitioner              : Sri V.Sai Kumar

Counsel for respondent No.1             : GP for Endowments

Counsel for respondents 2 to 5          : Sri A.Sumanth


                                    ORDER

The above writ petition is filed seeking the following

relief:

"... to issue a Writ or Order of Direction more particularly one in the nature of Writ of Mandamus declaring the action of respondent No.4 herein in issuing proceedings Roc.No.TTD-58021/28/2021-EE-VIII SEC-TTD dated 27.02.2022 in determining the contract of the petitioner

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as per clause 60(a) of Andhra Pradesh Detailed Standard Specifications by removing the name of the petitioner from the contractor list and also not allowing to participate in the 2nd respondent tenders for a period of two years and in issuance the consequential notice by the 5th respondent Roc.No.18/Dy.EE/UDS/TTD/TML/2020 dated 27.02.2023, as illegal, arbitrary, without jurisdiction and also violation of Article 19(1)(g) as well as Article 14 of the Constitution of India and violation of principles of natural justice consequentially stay of all further proceedings in Proceedings in Roc.No.TTD- 58021/28/2021-EE-VIII SECT-TTD dated 27.02.2023 further direct the respondent No.3 to consider the representations made by the petitioner since 22.01.2021 o 27.02.2023 (69 numbers of representations) under acknowledgment ..."

2. a) Averments in the affidavit, in brief, are that

respondent No.2 issued tender notification for disposal of dry

waste generated from Tirumala in NIT No.3668/SE-

II/TTD/2019-20 dated 27.11.2019 for a period of 10 years

and the petitioner company participated in the above said

tender. The petitioner was successful in the tender and the

tender was accepted by respondent No.2 board in resolution

No.331 dated 29.02.2020. Thereafter, respondent No.3

entered into an agreement with the petitioner on 20.10.2020.

As per the agreement, petitioner setup a plant for segregation

of waste with its own cost and furnished the bank guarantee.

As per the tender conditions the petitioner has to dispose of

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all the dry waste (non-hazardous) other than wet waste and

inert generated at Tirumala.

b) As per the agreement, the broad scope of service is

that the TTD will collect and transport the waste collected at

Tirumala to a specified point/yard at Tirumala. The firm

must segregate the same at their allocated yard. The agency

has to separate the wet waste if any, contained, and keep

aside for further process by the other agency. The segregated

wet waste and inert if any, will be transported by TTD. The

agency shall dispose all the remaining dry waste in an

organized manner and no waste should be left at the yard

and the yards premises should be maintained as per the

Solid Waste Management Rules, 2016.

c) Respondent authorities, by violating the conditions of

the agreement are transporting the wet waste with high mix

up of contamination food waste and human waste i.e.

sanitary napkins/pads, food parcel waste generated from

food courts and annaprasada kendras containing moisture.

However, petitioner-company took initiative of segregating

contaminated dry waste mobilizing its workers by dispatching

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the same on regular basis though it is not under the

agreement. Petitioner company informed the respondents to

that effect, but till date no action has been initiated.

d) Petitioner company engaged 141 trucks and

approximately cleared 2000 metric tons of contaminated

waste dumped at the dry waste plant of the petitioner with a

cost of Rs.3.50 paisa per kilogram to the cement companies

without own expenses and it incurred heavy loss. Though it

was specified as the dry waste center, petitioner-company is

receiving around 25 to 30 metric tons inward material on

daily basis in which only 10% is of dry waste and 90% is

contaminated bio-degradable food waste. Petitioner company

made representation dated 27.02.2023 to respondent No.4

with a request for personal inspection at the dry waste plant

and the same was received by respondent No.4. However,

without considering the same, respondent No.4 issued the

proceedings, impugned. Aggrieved by the same, the above

writ petition is filed.

3. a) Counter affidavit, deposed by respondent No.2 was

filed on behalf of respondent Nos.2 to 5. It was contended,

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inter alia, that agreement with the petitioner was concluded

on 12.10.2020 for the disposal of dry waste. After installation

of mechanical machinery and development of infrastructural

facilities by respondent No.2, the work commenced from May,

2021. As per the scope of work under clause 2.4 & 31.16, it is

the responsibility of the contractor to segregate and dispose

the dry waste supplied by TTD to the specified yard on daily

basis. Till February, 2023, 9880.67 metric tons of dry waste

was supplied and only 2630.04 metric tons was disposed by

the petitioner, resulting in huge accumulation of waste and

also daily supplied waste is also becoming a problem for

storing due to lack of place at the designated place and fly

nuisance is created, which is causing environmental

pollution, atop Tirumala Hills. Respondent authorities issued

several notices (21 in number) asking the petitioner to

maintain the progress of work by disposing of the dry waste

supplied regularly without any hindrance to further work.

However, petitioner did not heed to the problem of the waste

being accumulated at yard and the Executive Engineer issued

show cause notice on 23.01.2023 stating that almost 6500

metric tons dry waste is pending for disposal and the

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petitioner has neither responded to the same nor disposed

the dry waste and hence final notice as issued on

31.01.2023.

b) Basing on the representations of the petitioner and

on verification of one truck in presence of the petitioner firm

agent, segregation is done and it is observed that 90%

material received is dry waste and 10% is contaminated

waste and the same was intimated to the petitioner vide letter

dated 19.12.2022.

c) Even after issuance of final notice, since petitioner

did not respond in a positive manner to resume the work in

full-fledged manner and stopped the work abruptly and

accordingly, the contract was cancelled vide cancellation

proceedings Roc.No.TTD-58021/28/2021-EE-VII SEC-TTD

dated 27.02.2023 duly determining the contract and

forfeiting the deposits paid by the contractor besides

removing the name of the petitioner from the firms list. Thus,

prayed to dismiss the writ petition.

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4. Heard Sri V.Sai Kumar, learned counsel for petitioner

and Sri A.Sumanth, learned Standing Counsel for

respondents 2 to 5.

5. Learned counsel for petitioner would submit that the

explanation submitted by the petitioner dated 02.02.2023 for

the show cause notices dated 23.01.2023 and 31.01.2023

was not considered. He would also submit that respondent-

authority failed to transport the dry waste as mentioned in

Clause 2.1 of Tender notification.

6. However, learned counsel for petitioner would contend

and confined his argument only regarding blacklisting and

forfeiting the deposit. He also would submit that though it

was pleaded in the prayer to set aside the proceedings dated

27.02.2023, petitioner is not interested to proceed with work.

He would submit that blacklisting the petitioner without

considering the reply is in violation of principles of natural

justice and hence such an action is liable to be set aside.

7. Per contra, learned Standing Counsel would submit

that petitioner failed to adhere to the terms of contract.

Nearly 21 notices were issued to the petitioner and the

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petitioner submitted cyclostyle reply. He would also submit

that the writ petition is not maintainable, since the

agreement contained an arbitration clause and thus, prayed

to dismiss the writ petition.

8. Now, the point for consideration is

Whether the proceedings issued by the 4th respondent, impugned in the writ petition, are liable to be set aside since the authority failed to consider the explanation?

9. There is no dispute regarding the tender notification for

disposal of dry waste from Tirumala in NIT No.368/SE-

II/TTD/2019-20 dated 27.11.2019, acceptance of tender of

petitioner and agreement entered with the petitioner on

20.10.2020. As seen from the material papers filed along

with writ petition, to notices including final notice, issued on

behalf of respondents the petitioner submitted reply. In the

proceedings dated 27.02.2023 impugned in the writ petition,

it was mentioned as follows:

"The disposal of dry waste is not being regular and effective. Due to this the dry waste is accumulated in and around dry waste shed. As on 23.01.2023 about 6500 MT of dry waste was stocked without lifting. In

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spite of several requests, the waste was not cleared. Accordingly, notices were issued to the Firm on 08.09.2022, 21.09.2022 & 19.10.2022 and a show cause notice issued on 23.01.2023. As the contractor has not responded, Final notice also issued on 31.01.2023, even then the contractor has not responded."

10. In the show cause notice dated 23.01.2023, it was

pointed out that the petitioner has disposed of approximately

30% of dry waste only and the balance accumulated dry

waste of 70% is almost 6500 MT as on today which is against

the agreement conditions 2.3, 2.4, 2.7, 31.7. It was further

mentioned that the field staff measured the waste received in

a lorry on 16.12.2022 in the presence of technical agent of

petitioner and assessed that about 90% is dry waste and only

10% is wet waste. As per Clause 2.4 of the agreement, the

agency has to segregate the wet waste and to keep the same

aside. But this process is not being done. Hence, notice was

issued calling upon the petitioner as to why the contract

should not be cancelled duly forfeiting the deposits and

blacklisting the firm for a period of two years.

11. Final notice dated 31.01.2023 was issued, wherein

earlier show cause notices dated 04.11.2022 and 23.01.2023

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were shown at Reference No.5. A perusal of the final notice

would indicate that neither a response, nor any attempt was

made to clear the dry waste. Hence, it was finally directed

the petitioner to dispose of dry waste immediately, failing

which action will be taken as per Clause 60 (a) of APDSS duly

forfeiting the deposits and blacklisting for a period of two

years.

12. To both the notices, the petitioner submitted

explanation dated 02.02.2023. The explanation submitted by

petitioner is filed along with writ petition at Page No.77 and

the same was received by respondents on 02.02.2023. In the

proceedings impugned in the writ petition as extracted supra,

show cause notice was issued on 23.01.2023 and as the

contractor has not responded, final notice was issued on

31.01.2023, even then the contractor has not responded.

Hence, the agreement is determined as per Clause 60 (a) of

APDSS besides removing the name of contractor from the

Contractor/Firm list for not allowing to participate in T.T.D

tenders for a period of two years, duly forfeiting the deposits

paid by the contractor.

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13. Thus, as seen from the proceedings, the 4th respondent

failed to take note of explanation submitted by petitioner on

02.02.2023. whether the explanation is cyclostyle or without

any reasons, the 4th respondent ought to have considered the

explanation submitted by petitioner and pass a reasoned

order.

14. Whenever an explanation is submitted to the notice, the

authority should consider the explanation objectively. The

authority must form its opinion after duly considering the

material before it. The word 'consider' means to think over.

15. The word 'consider' was analyzed by the Hon'ble

Supreme Court in Chairman Life Insurance Corporation of

India & Ors v. A Masilamani1 and held thus:

"19. The word "consider" is of great significance. The dictionary meaning of the same is, "to think over", "to regard as", or "deem to be". Hence, there is a clear connotation to the effect that there must be active application of mind. In other words, the term "consider" postulates consideration of all relevant aspects of a matter. Thus, formation of opinion by the statutory authority should reflect intense application of mind with reference to the material available on record. The order of the authority itself should reveal such application of

(2013) 6 SCC 530

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mind. The appellate authority cannot simply adopt the language employed by the disciplinary authority and proceed to affirm its order."

16. In Bhikhubhai Vithalabhai Patel Vs. State of Gujarat2,

the Hon'ble Apex Court observed as under:

"... The term 'consider means to think over; it connotes that there should be active application of the mind. In other words, the term 'consider' postulates consideration of all the relevant aspects of the matter ..."

17. In Oriental Bank of Commerce Vs. Sunder Lal Jain3,

the Hon'ble Apex Court held as under:

"... Consider means to look at closely and carefully; to think or deliberate on; to take into account. ..."

18. In Ram Chander Vs. Union of India4, the Hon'ble Apex

Court held that "consider" means an objective consideration

by the Railway Board after due application of mind which

implies the giving of reasons for its decisions.

19. In Divisional Personnel Officer, Southern Railway Vs.

T.R. Chellappan5, the Hon'ble Apex Court held that the term

2008 (4) SCC 144

2008 (2) SCC 280

1986 (3) SCC 103

1976 (3) SCC 190, 201

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"consider" postulates consideration of all the aspects, the pros

and cons of the matter after hearing the aggrieved person.

20. In Barium Chemicals Ltd. Vs. A.J. Rana6, the Hon'ble

Apex Court held that the dictionary meaning of the word

'consider' is to review attentively, to survey, examine, inspect

(arch.), to look attentively, to contemplate mentally, to think

over, mediate on, give heed to, take note, to think deliberately,

bethink oneself to reflect'. The words 'to consider' means to

think with care. It is also mentioned that to 'consider' is to fix

the mind upon with a view to careful examination, etc.

21. Thus, a conspectus of authorities referred to supra

would discern that consideration of explanation should be

objective but not mere consideration for the sake decision.

However, as discussed supra, the authority failed to consider

the explanation.

22. In the proceedings impugned, it was mentioned that as

the contractor has not responded, final notice was also issued

on 31.01.2023, even then the contractor has not responded.

1972 (1) SCC 240

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But it is evident from the material available on record, the

petitioner submitted explanation on 02.02.2023 and the

same was acknowledged by respondents. Non consideration

of explanation, in the opinion of this court, itself constitutes

violation of principles of natural justice.

23. The proceedings impugned, in the opinion of this Court,

suffers from lack of reasons. Reasons are heart and soul of

every order.

24. In Kranti Associates (P) Ltd. Vs. Masood Ahmed

Khan7 on the point of necessity of giving reasons by a body or

authority in support of its decision, the Hon'ble Apex Court

summarized the legal position in paragraph-47, which is

reproduced as under:

"47. Summarising the above discussion, this Court holds:

(a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.

(b) A quasi-judicial authority must record reasons in support of its conclusions.

(2010) 9 SCC 496

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(c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.

(d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power.

(e) Reasons reassure that discretion has been exercised by the decisionmaker on relevant grounds and by disregarding extraneous considerations.

(f) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.

(g) Reasons facilitate the process of judicial review by superior courts.

(h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of judicial decision- making justifying the principle that reason is the soul of justice.

(i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system.

(j) Insistence on reason is a requirement for both judicial accountability and transparency.

(k) If a judge or a quasi-judicial authority is not candid enough about his/her decision-making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.

(l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or "rubber-stamp

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reasons" is not to be equated with a valid decision- making process.

(m)It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision-making not only makes the judges and decision-makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor [(1987) 100 Harvard Law Review 731-37])

(n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision- making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See Ruiz Torija v. Spain [(1994) 19 EHRR 553] EHRR, at 562 para 29 and Anya v. University of Oxford [2001 EWCA Civ 405 (CA)] , wherein the Court referred to Article 6 of the European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions". (o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, 13 requirement of giving reasons for the decision is of the essence and is virtually a part of "due process".

25. In view of the discussion supra, since the 4th

respondent failed to consider the explanation submitted by

the petitioner, the proceedings are liable to be set aside. In

view of the same, this court is not going into the aspect

argued by both the counsels.

26. Sri A.Sumanth, learned Standing Counsel for

respondents 2 to 5 would submit that after determination of

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agreement with petitioner, new contractor was appointed and

he is carrying on the work. Sri V.Sai Kumar, learned counsel

for petitioner as stated supra, is confined his argument only

regarding blacklisting the firm and forfeiting the deposits.