IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF MAY, 2017 BEFORE THE HON’BLE MR. JUSTICE A.S. BOPANNA WRIT PETITION NO.10172/2015 (GM-TEN) BETWEEN M/S. ACME JAIPUR SOLAR POWER PVT. LTD., (REPRESENTED BY ITS HEAD LEGAL AND AUTHORISED REPRESENTATIVE, MR.MUKESH CHANDRA GUPTA) REGISTERED OFFICE:-
F2, FIRST FLOOR JAGDAMBA TOWER, AMRAPALI CIRCLE, VAISHALI NAGAR, JAIPUR, RAJASTHAN CORPORATE OFFICE:- PLOT NO.152, SECTOR-44, GURGAON-122002 HARYANA ... PETITIONER (BY SRI UDAYA HOLLA, SR.COUNSEL FOR SRI VIVEK HOLLA, ADVOCATE) AND 1. STATE OF KARNATAKA (REPRESENTED BY ITS PRINCIPAL SECRETARY) MINISTRY OF ENERGY VIDHANA SOUDHA, BANGALORE-560 001.
2. KARNATAKA RENEWABLE ENERGY DEVELOPMENT LIMITED (REPRESENTED BY ITS MANAGING DIRECTOR) NO.39, SHANTHIGRUHA, BHARAT SCOUTS AND GUIDES BUILDING, PALACE ROAD, BANGALORE-560 001.
... RESPONDENTS (BY SMT. PRATHIMA HONNAPURA, AGA FOR RESPONDENT No.1 SRI G.S.KANNUR, ADVOCATE FOR RESPONDENT No.2) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 26.02.2015 ISSUED BY RESPONDENT No.2 VIDE ANNEXURE-A, TO THE EXTENT THEY PERTAIN TO THE PETITIONER AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner is before this Court assailing the order dated 26.02.2015 at Annexure ‘A’ to the writ petition.
2. The petitioner had undertaken certain contract for the respondent No.2. In respect of the same, respondent No.2 alleges misdemeanour on the part of the petitioner, pursuant to which, the impugned order at Annexure ‘A’ has been passed. Through the said order, the respondent No.2 has blacklisted the petitioner and barred them from participating in any tender process invited by respondent No.2 for a period of two years. The said order is assailed in this petition.
3. The learned senior counsel for the petitioner while assailing the said order would, at the outset, point out that the order impugned blacklisting the petitioner has been passed without issuing notice and affording opportunity to the petitioner and through the order, the petitioner is now being prevented from taking part in the tender process. This has affected the right of the petitioner not only in participating in the tender process that would be invited by respondent No.2, but the order impugned is also likely to affect the right of the petitioner in participating in the tender process to be invited by other authorities as the said order will be considered as a disqualification in that regard. In that view, the learned senior counsel would contend that the order in effect is an economic death penalty on the petitioner, which cannot be passed without providing appropriate opportunity.
4. Respondent No.2 though has filed the objection statement to the writ petition and the learned counsel for respondent No.2 seeks to sustain the order, a perusal of the objection statement would indicate that the contention urged therein is with regard to the merit of the consideration that has been made by respondent No.2 to arrive at its conclusion. The objection statement does not indicate that the order impugned has been passed after issuing show cause notice, providing opportunity to the petitioner to put forth their contention for the conclusion to be reached therein.
5. The procedure as adopted by the respondent No.2 would not be justified as the Hon`ble Supreme Court on more than one occasion, has indicated that an order of blacklisting can only be passed after issuing show cause notice and providing opportunity to the party, who is likely to be affected by such order. It would be appropriate to refer to the decision in the case of Gorkha Security Services vs. Govt. of NCT of Delhi and others (2014 AIR SCW 4586).
6. In that view of the matter, having perused the contentions urged in the writ petition and the objection statement, a perusal of the order impugned at Annexure ‘A’ would on the face of it, indicate that there is absolutely no reference whatsoever to the show cause notice issued to the petitioner before the order was passed in that regard. The reference contained therein is with regard to the contract entered into between the parties and the alleged misdemeanour, which according to respondent No.2, is to be taken into consideration for the purpose of blacklisting. Such action by respondent No.2 in any event cannot be sustained. At the same time, respondent No.2 cannot also be prevented from taking such action by following the due process of law and therefore, the consideration to be made herein would have to be made by providing the liberty to respondent No.2 to take such action in accordance with law though the order impugned is not sustainable. Therefore, the order impugned dated 26.02.2015 is liable to be set aside on the short ground of non-compliance of the principles of natural justice in not issuing show cause notice and providing the opportunity as required to be granted in law as enunciated by the Hon’ble Supreme Court.
7. In that view, the order dated 26.02.2015 is set aside with liberty to respondent No.2 to issue show cause notice, provide opportunity to the petitioner and thereafter, pass fresh orders in accordance with law.
The petition is, accordingly, disposed of.
Sd/- JUDGE sma