COMMON ORDER:

The petitioner is a company engaged in the business of manufacturing of Bio-fertilizers, Bio-pesticides, Bio-larvicides and other crop protection products. It had entered into different contracts, between 2014 to 2021, with the 2nd respondent herein for supply various Drugs, Surgicals and Consumable including a Bio-larvicide known as “BTI”. These contracts contained various terms and conditions. One of these terms was a stipulation, contained in clause 11.5 of the tender conditions, that the petitioner should not supply similar items to any other agency/State in the country during the validity of the contract with the 2nd respondent, at a rate lower than the rate at which the 2nd respondent was being supplied.

2. The 2nd respondent had issued a show cause notice on 17.02.2021 to the petitioner to show cause why the petitioner should not be blacklisted. This show cause notice was issued on the ground that the petitioner had supplied “BTI” to a central Government public sector company, known as “M/s. HLL Life Care Limited” at a price which is far lower than the price at which “BTI” was being supplied to the 2nd respondent.

3. The petitioner after receiving the said show cause notice had given its explanation on 01.03.2021. However, the 2nd respondent by its order dated 15.04.2021 in letter No. 45/10/DW/NVBDCP/2020-21, had issued an order of blacklisting the petitioner for a period of two years from

09.04.2021 to 08.04.2023.

4. The Petitioner initially approached this court, even before receiving the impugned order, by way of W.P.No.8865 of 2021, seeking a declaration that C1. 11.5 of the tender Nos.7-1/APMSIDC/SURGICALS/MW/2016-18 and 22 (17-19)/APMSIDC/Medicine Wing/2017-18 are illegal and arbitrary and the action of the respondents in blacklisting the petitioner company by merely issuing a list of blacklisted companies on the website of APMSIDC.

5. After the receipt of the impugned order dated

15.4.2021, the petitioner filed W.P. No. 9524 of 2021 seeking to declare the action of the respondents in passing the impugned order dated 15.04.2021 bearing Lr.No.45/10/DWN/NVBDCP/ 2020-21 thereby blacklisting the petitioner company for two years as illegal and arbitrary.

6. As the two writ petitions are connected, they are being disposed by way of this common order.

7. Sri Avinash Desai, learned counsel for the petitioner would submit that clause 11.5 of the tender conditions does contain the stipulation that the petitioner should not sell any product supplied to the 2nd respondent, during the currency of the contract, to any other similarly situated company at a price lower than the price at which the “BTI” was being supplied to the 2nd respondent. However, clause 14.1 of the special conditions qualifies the said stipulation with two conditions.

Firstly, it should not be a similar product and secondly, it should not be a similar quantity.

8. Sri Avinash Desai, learned counsel for the petitioner submits that even though the petitioner have given the details of supply to M/s. HLL Life Care Limited, which would clearly show that the material supplied to HLL was in multiples of the material supplied to the 2nd respondent and consequently the petitioner would not be bound by the said special condition, the 2nd respondent without adverting to any of these grounds had blacklisted the petitioner and the same is arbitrary requiring the interference of this Court.

9. Sri Venkata Reddy Chittem, the learned Standing Counsel appearing for the 2nd respondent would draw the attention of this court to the declaration filed by the petitioner along with the tender documents which clearly stipulated that the prohibition stipulated in clause 11.5 and 14.1 would relate only to a situation where similar size and similar quality of product is involved. He would submit that on account of this declaration, the petitioner is bound to supply “BTI” to any other party including M/s. HLL Life Care Limited at a price which is not lower than the price at which t