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Calcutta High Court
Jaiswal Iron And Steel Company And Ors vs Board Of Trustees For Syama Prasad on 6 April, 2026
O-1
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
WPO/157/2026
JAISWAL IRON AND STEEL COMPANY AND ORS.
VS
BOARD OF TRUSTEES FOR SYAMA PRASAD
MOOKERJEE PORT OF KOLKATA AND ORS.
BEFORE:
The Hon'ble JUSTICE KRISHNA RAO
Date : 6th April, 2026.
Appearance:
Mr. Chayan Gupta, Adv.
Mr. Pourush Bandhyopadhyay, Adv.
Mr. Uttam Sharma, Adv.
Mr. Vrinda Kediua, Adv.
...for the petitioners
Mr. Dhiraj, Trivadi, Adv.
Mr. Ashok Kumar Jena, Adv.
...for the respondent no. 1 to 7
1. Affidavit of service filed by the petitioners be kept with the records.
2. The petitioner has filed the present writ petition challenging the
impugned order dated 19th August, 2025 wherein the respondent
authorities have forfeited the entire sale value deposited by the petitioner
without any refund against the undelivered portion of the sold lot and
the petitioner's firm is debarred from participating any future tenders,
auctions or tender-cum-auctions conducted by the Syama Prasad
Mookerjee Port, Kolkata (SMPA) for a period of two years effecting from
the date of receipt of letter. In the said letter the petitioner was also
refrained from engaging in any further dealings with the Port during the
debarment period.
3. The respondent no. 8 had floated a tender wherein e-auction process was
held for sale of one number of condemned Pontoon lying at Takta Ghat
and two members of condemned Pontoons lying at Outram Jetty-2 on
29.11.2023. The petitioner no. 1 had participated in the said tender and
the bid submitted by the petitioner no. 1 was found to be the highest and
was declared as successful bidder. The petitioner no. l deposited entire
sale consideration alongwith applicable taxes. On receipt of payment, the
Office of the respondent no. 5 issued daily gate pass/Block gate pass on
11.1.2024.
4. Mr. Chayan Gupta, learned Advocate representing the petitioner submits
that in the gate pass dated 11.1.2024 it is mentioned that the same must
be treated as Block gate pass and not to be treated as daily gate pass,
the petitioner has made several requests for issuance of daily gate pass
but the same was not provided to the petitioners.
5. Mr. Gupta submits that the petitioners have mobilized the labourers for
transportation of pontoons as per Block gate pass and oral permissions
as the daily gate pass has not been issued inspite of several oral request
made by the petitioners. He submits that Pontoons were already afloat on
the river water surface. He submits that the authorities permitted the
petitioners to proceed with cutting operations without insisting upon fire
clearance.
6. Mr. Gupta submits that on 6th February, 2024, the Assistant Mooring
Master stopped the work without any notice. The petitioners on the same
date made an application requesting for waiver of Clause -2 of the
delivery note dated 11.1.2024 but the respondents have not considered
the request of the petitioners and again on 8.2.2024 a request was made
to the respondent no. 3 for waiver of Clause -2. On 8.2.2024, the
petitioners have also filed a complaint making allegation of Prevention of
Corruption Act.
7. The petitioners have withdrawn the allegation of Prevention of Corruption
Act. The respondents have issued show cause notice to the petitioners on
6th March, 2024.
8. On receipt of the said notice, the petitioners have submitted a reply
requesting 12 days time to submit comprehensive reply and
subsequently the petitioners have made detailed representation to the
authority on 3rd of June, 2024. The respondent authorities have issued
the impugned order on 19th August, 2025. Now the petitioners have filed
the present writ application mainly on the ground that the respondent
authorities have issued a fresh tender for the similar materials without
considering the fact that on the earlier tender process, the petitioners
have paid the total tender amount to the authorities with respect to the
said materials. Now the authorities by way of the fresh tender process
intend to re-sale the said materials and the last date of the auction is of
7th April, 2026.
9. Mr. Gupta, learned Advocate appearing for the petitioners submitted that
by the impugned order dated 19 th August, 2025, the respondents have
blacklisted the petitioners without issuing any show cause notice and
without affording any opportunity of hearing. He further submitted that
the respondent authorities while issuing the impugned order failed to
appreciate that the petitioners have already paid the total tender amount
with respect to the materials in question but the authorities have
cancelled the said tender, work order and proceeded for a new tender
process for the same work for which the petitioners are suffering severe
financial loss.
10. The petitioners further submit that as per the tender condition, in
case of any default in lifting of the materials by the petitioners within the
specified date, the outstanding materials may be lifted on payment of the
rate at 1% per week or part thereof of the total material value for such
default period beyond the specified delivery period as stipulated in the
delivery order at the sole discretion of the SMP, Kolkata. He submitted
that the respondent authorities without considering the said clause have
cancelled the delivery order of the petitioners and issued fresh tender for
the same materials.
11. Learned Counsel for the petitioners submitted that if an interim
order is not passed and the respondents are allowed to continue with the
tender process, the petitioners will suffer severe financial loss.
12. Per contra, learned advocate appearing for the respondent
authorities submits that the petitioners have suppressed the document
while filing the present application.
13. The learned Advocate appearing for the respondents has handed
over the auction catalogue report and submits that in the said catalogue
it is categorically mentioned that "For scrap material to be delivered in
weight, no cutting will be allowed unless certified by the concerned
custodian. For equipment, cutting may be allowed for facilitating
transportation of the same on receipt of the application by the purchaser
and such permission may be granted at the discretion of KOPT for which
clearance is to be obtained from the Port Fire Service and payment of
requisite charges is to be made by the buyer on compliance of related
formalities as might be necessary as well."
14. He submits that in the present case, the petitioners have not
followed the said condition and have not obtained any permission from
the concerned authority in terms of the Conditions of the Contract. He
further submits that as per the Contract condition, there is a clause of
forfeiture and as per the said clause in case the whole or any part of the
goods sold remain uncleared, even after the authorized period stated in
the delivery schedule, the purchaser shall have no claim whatsoever on
the goods remaining uncleared and the amount paid towards EMD shall
stand forfeited at the expiry of the said period. He further submits that in
the present case the petitioners have failed to clear the sold materials
even after receipt of the show cause notice and under such
circumstances the respondent authorities have invoked the provisions of
Clause 8.1 of the Tender Conditions.
15. Learned Counsel appearing for the respondent authorities has
further brought to the notice of this Court that the tender documents
provides an arbitration clause but the petitioners instead of invoking the
provisions of arbitration, have filed the present writ application which is
not maintainable. He further submits that the impugned order is issued
on 19th August, 2025 but the petitioners have not challenged the said
order till the filing of the instant writ application. Only after issuance of
the tender notice by the respondent authorities and at the fag end when
the last date of the tender is on 7th April, 2026, the petitioners have filed
the present writ application only with the intention to stall the tender
process.
16. Learned Counsel for the respondents submits that the writ petition
is not maintainable and the same is liable to be dismissed.
17. Heard the Learned Counsel for the respective parties. Perused the
materials on record.
18. Admittedly, the petitioners have not removed the materials within
the delivery period. The ground taken by the petitioners for not taking
out the materials within the delivery period is that the respondent
authorities have not provided a gate pass. The authorities have issued
the show cause notice to the petitioners on 6 th March, 2024, wherein it is
alleged that the petitioners had commenced the subject work without
following the prescribed procedure and documentation as mentioned in
the subject delivery order. It is also the allegation that the petitioners
have not taken any permission from the Port Fire Services for cutting the
auctioned materials. It is also the allegation that the petitioners have
commenced taking away SMPK's materials without any daily gate pass.
In the show cause notice it is also alleged that the petitioners
unauthorisedly resorted to stacking gas cylinder after trespassing into
the port premises, for cutting of pontoon within the Port premises at
Outram Jetty-II in front of Riverside Officers Club, without any
permission from the Port authorities.
19. It is also at the allegation that the petitioners instead of taking out
the materials in accordance with the work order issued, the petitioners
have made several allegations against the Port Officers. In the show
cause notice the petitioners were given an opportunity to regularize the
irregularities within 10 days from the date of receipt of this
communication.
20. The petitioners have submitted their reply to the show cause notice
on 16.05.2024 but this Court finds that the petitioners have not given
any justification to the allegations made in the notice dated 6 th March,
2024. In the reply the petitioners have prayed for 12 days time to file a
comprehensive representation. On 3 rd of June, 2024 the petitioners have
made a detailed reply. The respondents have considered the detailed
reply and passed the impugned order dated 19 th August, 2025.
21. The petitioners have raised two issues that in the tender document
in one place the respondents have stated that in Clause 8.1 that in case
whole or any part of the goods sold remain uncleared or even after the
period stated in the delivery schedule, the purchaser shall have no claim
whatsoever on the goods remaining uncleared and the amount paid
towards the EMD shall stand forfeited.
22. On the other hand, in Clause 7.2 it is mentioned that the ground
rent in case of default in lifting of the materials by the petitioner within
the specified time limit, the outstanding materials may be lifted on
payment of ground rent at the rate of one (1) percent per week or part
thereof, of the total material values for such defaulted period, beyond the
specified delivery period, as stipulated in the delivery order, at the sole
discretion of the SMP Kolkata.
23. The authorities have issued the notice to the petitioner on 6 th
March, 2024. On 16th May, 2024 the first reply was submitted by the
petitioners, the petitioners have not given any explanations to the
allegation in the said reply. Subsequently, on 3 rd June, 2024 the
petitioners have submitted a detailed representation but in the said
representation also the petitioners have not stated that they are ready to
pay interest @ 1% per week, or part thereof, of the total material value for
such defaulted period beyond the specified delivery period as stipulated
in the delivery order. Thus, the respondent authorities have not
considered the request of the petitioners.
24. Considering the above, this Court finds that when the petitioners
have made a detailed representation, the petitioners should have opted
clause 7.2 which the petitioners intend to take the benefit of the said
clause after the period of delivery. The petitioners have also not pleaded
for the benefit of the said clause in the writ application that the
petitioners are ready to pay the 1% of per week charge as per the Clause
7.2 of the Tender conditions, only at the time of hearing the petitioners
have pointed out the said clause.
25. As regards the arbitration is concerned, this Court finds that the
impugned order was passed in the month of August, 2025. The
petitioners have not challenged the said order till the filing of the writ
application. Though this writ application was filed only on 1 st April,
2026, when the last date of auction schedule was 7 th April, 2026, from
the said act of the petitioners, this Court is of the view that the
petitioners only to stall the re-tender process of the respondents have
filed the present writ application actually the petitioners are not
aggrieved with the impugned notice dated 19.08.2025.
26. As regards the blacklisting of the petitioners, this Court finds that
though the respondents have issued the notice on 6 th March, 2024, but
in the said notice the respondents have not informed the petitioners that
the respondents are going to blacklist the firm of the petitioners.
27. Thus, it is settled law unless an until the petitioners are not given
an opportunity of hearing with regard to the blacklisting of the firm, the
order of the blacklisting cannot be sustained.
28. In view of the above, the writ petition is disposed of only by setting
aside the part of the order wherein the petitioner firm have been
blacklisted and other portion of the order is not interfered by this Court.
29. This writ application is disposed of at the stage of motion. Since no
affidavit is called for, the allegations made in the writ application are
deemed to have been denied. However, the petitioners are at liberty to
take appropriate steps for initiation of arbitration proceeding in
accordance with law.
(KRISHNA RAO, J.)
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