M/S Realty Advance Structure ... vs The State Of Bihar
2021 Latest Caselaw 4968 Patna

           IN THE HIGH COURT OF JUDICATURE AT PATNA

                      Civil Writ Jurisdiction Case No.8645 of 2021

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M/s Realty Advance Structure Enterprises Pvt. Ltd. Regd. office Shanti Kunj, Brahm Asthan, Kurthoul, Patna, Head Office- House No. 955, Maurya Path, Khajpura, Near Pillar No. 15, Bailey Road, Patna-14, through Director, Mukesh Kumar, aged about 46 years, Male, Son of Basant Singh, resident of village- Jethiyara, Police Station- Parasbigha, District- Jehanabad

... ... Petitioner/s Versus

1. The State of Bihar through Principal Secretary, Building Construction Department, Government of Bihar, Patna

2. The Engineer in Chief Building Construction Department, Government of Bihar, Patna

3. The Chief Engineer (North) Building Construction Department, Government of Bihar, Patna

4. The Superintending Engineer, Muzaffarpur, Building Construction Department, Government of Bihar, Patna

5. The Executive Engineer, Vaishali Building Division, Hajipur

6. The Assistant Engineer, Vaishali Building Division, Hajpur

7. The Junior Engineer, Vaishali Building Division, Hajpur

... ... Respondent/s ====================================================== Appearance :

     For the Petitioner/s     :        Mr.Dhananjay Kumar
     For the Respondent/s     :        Mr. Narendra Kumar Singh, AC to GP 22

====================================================== CORAM: HONOURABLE MR. JUSTICE ANIL KUMAR SINHA

ORAL JUDGMENT

Date : 25-10-2021

Heard learned Counsel for the parties concerned. Patna High Court CWJC No.8645 of 2021 dt.25-10-2021

2. The petitioner is aggrieved by letter no. 1798, dated

16.09.2020, issued by respondent no. 5, the Executive Engineer,

Building Division, Vaishali, Hajipur (Annexure 5), whereby the

petitioner company has been debarred.

3. Learned Counsel for the petitioner submits that the

petitioner is a registered contractor of the Building Construction

Department under Class-I category. The petitioner company has

been awarded the work of construction of Engineering College

building, at Bidupur, in the district of Vaishali. He further submits

that the petitioner company has completed about 90 per cent of the

awarded work, but without issuing any show cause, the petitioner

company has been debarred/blacklisted by the respondent no. 5.

He further submits that as per Rule 11 (c) of the Bihar Contractor

Registration Rules, 2007 (in short, the '2007 Rules'), the

blacklisting/suspension order can be passed by the Engineer-in-

Chief and in the present case, the impugned order of debarment,

which is equivalent to blacklisting, has been passed by the

Executive Engineer, who has got no jurisdiction under the

statutory Regulation/Rules. He further submits that he has

specifically stated in paragraph 15 of this writ application that the

order of debarment entails the petitioner with civil consequences,

but before passing the impugned order, no opportunity and/or Patna High Court CWJC No.8645 of 2021 dt.25-10-2021

show cause was served upon the petitioner. As such, the impugned

order has been passed in utter violation of the principle of natural

justice. He also submits that the statement of the petitioner made

in paragraph 15 of this writ application has not been controverted

by the State in its counter affidavit.

4. Learned Counsel for the State, referring to Annexure

A series, submits that as per the letter of the Engineer-in-Chief

-cum- Special Secretary, Road Construction Department, Bihar,

Patna, dated 13.03.2013, the power to pass order of debarment has

been conferred upon the Executive Engineer also. Further, on the

question of service of show cause upon the petitioner before

passing the impugned order, learned Counsel for the State submits

that no show cause has been served upon the petitioner prior to

passing of the impugned order.

5. In reply to the submission made by learned Counsel

for the State, learned Counsel for the petitioner submits that the

letter of the Engineer-in-Chief -cum- Special Secretary, Road

Construction Department, Bihar, Patna, dated 13.03.2013, is in

teeth of 2007 Rules and the executive instruction and/or circular

cannot override the statutory regulation.

6. Having heard learned Counsel for the parties and

upon perusal of the materials available on record, it appears that Patna High Court CWJC No.8645 of 2021 dt.25-10-2021

the order of debarment has been passed without giving any

opportunity or show cause to the petitioner, as such, the same is

not sustainable in the eyes of law on this ground alone.

7. It is settled principle of law that before passing the

order of blacklisting, which entails severe civil consequences, the

person concerned against whom the action is proposed is required

to be given the reasonable opportunity to defend himself and as

held in UMC Technologies Private Limited v. Food

Corporation of India and Another, reported in (2021) 2 SCC

551, the notice/show cause must contain the penalty/action, which

is proposed to be taken should be mentioned specifically and

unambiguously.

8. The impugned order is also in the nature of a

permanent debarment order which is in the teeth of the judgment

of the Supreme Court, in the case of Daffodils Pharmaceuticals

Limited and Another v. State of U.P. and Another, reported in

2019 (12) JT 283 and Vetindia Pharmaceuticals Limited v.

State of Uttar Pradesh and Another, reported in 2021 (1) SCC

804, the Supreme Court has observed that an order of blacklisting

beyond three years or maximum of five years is disproportionate

and such blacklisting/debarment should not be for indefinite

period.

Patna High Court CWJC No.8645 of 2021 dt.25-10-2021

9. From perusal of the 2007 Rules, it appears that the

order of blacklisting/suspension has to be passed by the officer

who is competent to register the contractor or by the officer under

whom registering officer works, which in the present case is the

Engineer-in-chief and not the Executive Engineer.

10. In terms of Rule 4 (b) of the 2007 Rules, the

Engineer-in-Chief or an officer not below the rank of Chief

Engineer has been designated as the Registering Officer.

11. A co-ordinate bench of this Court, in CWJC No.

3683 of 2019, on the identical facts has considered the 2007 Rules

and has decided that the Executive Engineer, Building

Construction Department, Construction Division, Darbhanga is not

competent authority to pass the order of debarment.

12. In view of the aforesaid discussion, on the point of

law as well as on facts, I am of the considered view that the

impugned order of debarment (Annexure 5) has been passed in

violation of the principle of natural justice and further the

Executive Engineer has got no jurisdiction to pass the impugned

order and the same is in the nature of permanent debarment.

13. Accordingly, this writ application is allowed and the

letter no. 1798, dated 16.09.2020, issued by respondent no. 5, the Patna High Court CWJC No.8645 of 2021 dt.25-10-2021

Executive Engineer, Building Division, Vaishali, Hajipur

(Annexure 5), is hereby set aside.

14. There shall be no order as to costs.

(Anil Kumar Sinha, J.) Prabhakar Anand/-

AFR/NAFR                         NAFR
CAV DATE                          N/A
Uploading Date                27-10-2021
Transmission Date                 N/A