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2021 Supreme(Guj) 556
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B.PARDIWALA, VAIBHAVI D. NANAVATI, JJ.
DELF CONSULTING ENGINEERS (INDIA) PRIVATELIMITED – Appellant
Versus
GOVERNMENT OF GUJARAT – Respondent
R/SPECIAL CIVIL APPLICATION NO. 6794 of 2021
Decided On : 23-07-2021
For the Appellant : NANAVATI & CO.
For the Respondent: MR KRUTIK PARIKH, AGP
Point of Law: If there is a power to decide and decide detrimentally to the prejudice of a person, the duty to act judicially is implicit in exercise of such a power and the rule of natural justice operates in areas not covered by any law validly made. The criteria for an adequate notice is that the Court's conscience must be satisfied that the concerned person had a fair chance to know the details of the case against him and of the action proposed to be taken against him
Headnote:
Constitution of India,1950 - Article 226 - Indian Companies Act, 1956 - Notice - Order or direction in the nature of writ of mandamus declaring the Circular Memorandum - ground of passing of order of blacklisting without issuance of show cause notice and without affording opportunity of hearing to the petitioner company - whether or not the appellant’s said belief was well founded - Writ applicant is engaged in the business of civil and structural engineering consultancy. The Nadiad Division of the Road and Buildings Department, Government of Gujarat invited consultancy bids in May, 2018 for the appointment of technical consultant for the Consultancy services for preparation of a detailed project report for constructing major bridges across the three rivers passing through the Kheda District of the State of Gujarat - It has been brought to the notice of Government that the consultant - order has been impugned in the present writ application substantially on the ground that without issue of any show cause notice or without giving any opportunity of hearing to the writ applicant - impugned order is assailed on the ground that the same is stigmatic in nature and bars the writ applicant from participating in any government tender for a period of three years –
Finding of the Court:
Natural justice principle is implicit. It need not be expressly provided for in the statute. Where there is nothing in the statute to actually prohibit the giving of an opportunity of being heard, then having regard to the nature of the statutory duty imposed the decision maker itself implies an obligation to hear before deciding. Whenever an action of a public body results in civil consequences for the person against whom the action is directed, the duty to act fairly can be presumed and in such a case - could be just one overriding reason to exclude the application of the principles of natural justice and that is in the case of national security. Such is not the stance of any of the respondents in the present case - we have reached to the conclusion that we should quash and set aside the impugned circular memorandum, Annexure P-3, page 15 of the paper book dated 27.11.2020 only on the ground that the same could be said to be in gross violation of the principles of natural justice –
Result: Writ application disposed of
ORDER :
J.B.PARDIWALA, J.
1. Rule returnable forthwith. Mr. Krutik Parikh, the learned AGP waives service of notice of rule for and on behalf of the respondents.
2. With the consent of the learned counsel appearing for the parties, the matter is taken up for final disposal.
3. By this writ application under Article 226 of the Constitution of India, the writ applicant - a company incorporated under the provisions of the Indian Companies Act, 1956, has prayed for the following reliefs:
“(a) To issue a writ of mandamus or a writ, order or direction in the nature of writ of mandamus declaring the Circular Memorandum dated 27.11.2020 passed by the Roads and Building Department Government of Gujarat (Annexure P-3) banning the petitioner company for a period of 03 years to be violative of principles of natural justice and therefore bad in law, and consequently quash and set aside the Circular Memorandum dated 27.11.2020 passed by the officer on Special Duty, Roads and Building Department, Government of Gujarat (Annexure P-3);
(b) To pass an ex-parte ad interim order staying the operation of Circular Memorandum dated 27.11.2020 passed by the Roads and Building Department, Government of Gujarat – respondent no.1 banning the petitioner company for a period of 03 years pending the hearing and final disposal of the present petition;
(c) To pass any other order or orders in favour of the petitioners as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.”
4. The facts giving rise to this writ application may be summarized as under:
4.1 The writ applicant is engaged in the business of civil and structural engineering consultancy. The Nadiad Division of the Road and Buildings Department, Government of Gujarat invited consultancy bids in May, 2018 for the appointment of technical consultant for the Consultancy services for preparation of a detailed project report for constructing major bridges across the three rivers passing through the Kheda District of the State of Gujarat.
4.2 In the aforesaid context, the dispute cropped up between the writ applicant and the respondents. Ultimately, the same led to an order dated 27.11.2020 passed by the Roads and Buildings Department, Gandhinagar. The same reads thus;
“Government of Gujarat
Roads and Building Department,
Sachivalaya, Gandhinagar,
Date. 27-11-2020
Subject: Banning business to the consultant The Delf consulting Engineers Pvt. Ltd.
CIRCULAR MEMORANDUM
It has been brought to the notice of Government that the consultant The Delf consulting Engineers Pvt. Ltd, Ahmedabad to whom below mentioned work was entrusted by the Executive Engineer, R&B Division, Kheda has prepared in Infructuous DPR resulting in obnormal extra and excess quantity in many items in DPR prepared by the firm.
NAME OF CONSULTANCY SERVICE WORK
Consultancy Services for preparation of the detailed project report for constructing major bridges across three river in Kheda district
2. After careful scrutiny and consideration of the whole case, Government is constrained to order that the consultant The Delf consulting Engineers Pvt. Ltd. Ahmedabad should be banned and kept in abeyance for 3 (three year from assigning the business with Roads and Buildings Department Government of Gujarat from the date of issue of this order.
(A.N.Mistry)
Officer on Special Duty (S.P.)
Roads and Buildings Department
Gandhinagar”
4.3 The aforesaid order has been impugned in the present writ application substantially on the ground that without issue of any show cause notice or without giving any opportunity of hearing to the writ applicant, the State could not have passed such an order as it entails civil/evil consequences. In other words, the impugned order is assailed on the ground that the same is stigmatic in nature and bars the writ applicant from participating in any government tender for a period of three years.
5. We have heard Mr. Tushar Himani, the learned senior counsel assisted by Mr. Maulik Nanavati, the learned counsel
