SCA/1062520/2008 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 10625 of 2008 For Approval and Signature: HONOURABLE MR. JUSTICE MOHIT S. SHAH AND HONOURABLE MS.JUSTICE H.N.DEVANI ================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================= EKTA OFFSET PVT. LTD. - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ================================================= Appearance : MR MIHIR JOSHI, Sr. ADVOCATE with MR RJ GOSWAMI for Petitioner(s) : 1, MR APURVA DAVE, AGP for Respondent(s) : 1, 3, MR NIRAL R MEHTA for Respondent(s) : 2. ================================================= CORAM : HONOURABLE MR. JUSTICE MOHIT S. SHAH and HONOURABLE MS.JUSTICE H.N.DEVANI Date : 17/12/2008 ORAL JUDGMENT (Per : HONOURABLE MR. JUSTICE MOHIT S. SHAH) Rule. Mr Apurva Dave, learned AGP waives service of Rule for respondent Nos. 1 and 3. Mr. Niral Mehta waives service of Rule for respondent No. 2. 2. In this petition under Article 226 of the Constitution, the petitioner has challenged the order dated 2.8.2008 (Annexure "K") SCA/1062520/2008 2/6 JUDGMENT of the Collector, District Election Officer & Collector, District Kheda at Nadiad blacklisting the petitioner from submitting any tenders/quotations for any Government work in Kheda District. 3. It appears that the petitioner was awarded the contract for making all the arrangements for the elections to the State Assembly in the year 2007, particularly printing, supply of stationery, catering and providing booths/pandals for the election purposes. The petitioner's case is that while the work orders were passed by the Collector pursuant to the above contract, there were also several items which the petitioner had supplied upon requisitions by the Mamlatdars of the concerned talukas, who were in charge of the election arrangements in the concerned constituencies. It appears that the petitioner submitted the bills for the aforesaid goods/services provided by the petitioner for amounts aggregating to Rs.76,64,592/-. It is the petitioner's case that after submission of the bills in December, 2007, since the payments were not being made towards the said bills, the petitioner sent reminders and thereafter ultimately sent notice dated 25.2.2008 to the Collector through its learned advocate. However, instead of making payments as demanded by the petitioner, the Collector issued show cause notices dated 12.3.2008 and 16.6.2008 calling upon the petitioner to show cause why the petitioner should not be blacklisted for having submitted excessive bills for the amounts far in excess of the amounts otherwise payable as per the work orders and also for submitting bills at the rates higher than the rates specified in the contract. The petitioner submitted its reply dated 14.3.2008 and 27.6.2008. The petitioner submitted that apart from supplying items as per the work orders, the petitioner had supplied several items as per oral orders/instructions of the Mamlatdars and that there were many similar items for which the petitioner submitted consolidated bills as the items were like pencils, safety pins, etc. The petitioner also submitted that the arrangements made by the petitioner for polling booths and such other SCA/1062520/2008 3/6 JUDGMENT arrangements were actually provided for three to four days as per the requirements and as per the practice of the election authorities followed for the last many elections, particularly the catering arrangements/mandap arrangements, strong rooms and other ancillary services provided by the petitioner to the election authorities were to the extent of Rs.42,86,790/-, but the payment was made only to the tune of Rs.7,68,194/- on the basis that such arrangements were required to be made only for one day. 4. The petitioner was given a personal hearing by the Collector on 27.6.2008 and thereafter by the impugned order dated 2.8.2008 (Annexure "K"), the District Election Officer & Collector, Kheda blacklisted the petitioner for having demanded Rs.55,87,185/- in excess of the amounts which the petitioner was entitled to under the contract awarded to the petitioner. 5. Mr Mihir Joshi, learned counsel for the petitioner has submitted that while the authorities may have the right to dispute the petitioner's claims as made in the bills submitted by the petitioner, the respondent - Collector had no authority to pass the order for blacklisting the petitioner on the ground that the bill amounts were in excess of the amounts which the petitioner was entitled to under the contract. It is particularly submitted that the arrangements for catering, mandaps, strong rooms, etc. were required to be made by the petitioner for the election purposes and that in the past also for elections to Lok Sabha, the petitioner was given similar contract and the petitioner had made such arrangements. It is also submitted that although the polling may take place on only one day, the contractor has to keep all the required material well in advance and also to put all such polling booths, strong rooms, etc. a day or two in advance before the date of polling and similarly, the strong rooms, etc. would be required to be maintained till the date of counting. It is, therefore, submitted by Mr Joshi for the petitioner that in the past including the last SCA/1062520/2008 4/6 JUDGMENT elections to Lok Sabha, the payments to the contractors were made on that basis and not for only one day. Mr Joshi has also invited our attention to the letter dated 28.5.2008 of the Deputy District Election Officer, Anand addressed to the petitioner indicating that the concerned contractor who was awarded a similar contract in Anand District for the elections to the Assembly in 2007 was paid rental charges for the counting hall for four days. Similarly, our attention is invited to the details of the payments made for the furniture and decoration services provided during the general elections to Lok Sabha in 2004 to show that the rental charges for such furniture and arrangements were for four days or for a longer period and not just for one day. This information the petitioner obtained from the Deputy District Election Officer and the Public Information Officer under the Right to Information Act. It is further submitted that the dispute about the rate was only in respect of one item, which was visitation sheet, but the bills submitted in respect of other items were as per the contract rates. As regards visitation sheets, it is submitted that there was no rate specified in the contract and that, therefore, in view of the above facts, the authority has committed an error apparent on the face of record by giving a finding that the petitioner had claimed rates higher than those stipulated in the contract. Mr Joshi has submitted that in any view of the matter the respondent - Collector could not have, and ought not to have, blacklisted the petitioner merely on the ground of disputes raised to the bills submitted by the petitioner. 6. On the other hand, Mr Apurva Dave, learned AGP has opposed the petition and submitted that the petition raises disputed questions of fact. It is also submitted that the petitioner has alternative remedy available to it and, therefore also, the petition SCA/1062520/2008 5/6 JUDGMENT should not be entertained. Mr Dave has further submitted that the amounts claimed by the petitioner in the bills in question were far in excess as compared to the amounts payable under the contract and the work orders and that the authority was justified in passing the impugned order which would deter the petitioner and other contractors from submitting such excessive bills in the future. 7. Mr Niral Mehta, learned advocate for respondent No. 2 states that the impugned decision is taken by the Collector and the State Election Commission is not concerned with the same. 8. Having heard the learned counsel for the parties, we are of the view that since the petitioner challenges only the impugned order dated 2.8.2008 blacklisting the petitioner, we are not called upon to consider whether the petitioner is entitled to receive the bill amounts. 9. Having gone through the petitioner's reply and having heard the learned counsel for the petitioner, we find that prima facie the rates claimed by the petitioner were not in excess of the rates payable under the contract and that the petitioner had tried to give justification for submitting the bills. If at all the respondent authorities were not satisfied with such demands, it was open to the authorities to call for further details and thereafter to refuse to pay the payments which may not be justified. But when the petitioner's contention is that during all such elections, the materials are made available for three days and that in such districts also bills are made for three to four days, it cannot be said that the claims made by the petitioner were mala fide. We find from the impugned order that the major dispute is about item No. 4. As against bills of Rs.42,86,790/- submitted by the petitioner, the Collector has sanctioned an amount of Rs.7,68,194/-, it is obvious that if the petitioner's claim were to be accepted for payment of the amounts for three days, the amount would have SCA/1062520/2008 6/6 JUDGMENT been in the region of about Rs.23 lacs and if it were for four days, it would be in the region of about Rs.30 lacs. Similarly, it appears that the petitioner's defence is that there were many small items like pencils, candles for which the petitioner had submitted lumpsum bills of Rs.60,000/- or similar amounts and if the authority was not satisfied with the said claim, at the most the petitioner could have been called upon to give a detailed break-up. 10. In the facts and circumstances of the case, we are of the view that the impugned decision to blacklist the petitioner was not warranted and on that ground alone, we are inclined to set aside the impugned order of blacklisting. We, however, make it clear that this order may not be treated as expression of any opinion on the merits of the petitioner's claim and it will be open to the petitioner to move the authority again with necessary details and particulars alongwith documentary evidence in support thereof. If the petitioner approaches the authorities again, the concerned authority - respondent No. 3 shall give the petitioner an opportunity of personal hearing and thereafter take a decision on the question as to what amounts should be paid to the petitioner. 11. The petition is accordingly allowed in the aforesaid terms with no order as to costs. Rule is made absolute to the aforesaid extent. [M. S. SHAH, J.] [HARSHA DEVANI, J.] sundar/-