HIGH COURT OF CHHATTISGARH BILASPUR N“ D B Hon’ble Shrl Ra eev Gu ta C J & Hon’ble Shrl Sunll Kumar Slnha J N Writ Petition 1C! No. 846 of 2008 Hari Om Medical Agency Versus State of Chhattisgarh and others ORDER For consideration ‘ Sd Jhdge 2- }/O3/2009 HON’BLE SHRI JUSTICE RAJEEV GUPTA 9 x Sd/- CHIE JUSTICEVV 92 éZ/03/2009 Sd/- a Sunil Kumar Sinha Judge Post for Order :z;/03/2009 A—— / % F a HIGH COURT OF CHHATTISGARH BILASPUR D.B. HON’BLE SHRI RAJEEV GUPTA C.J. 8a E HONB’LE SHRI SUNIL KUMAR SINHA J. WRIT PETITION (Cl. No. 846 of 2008 PETITIONER Hari Om Medical Agency — through Proprietor, Vidya Charan, aged about 30’years, s/o Jagdamba Prasad Agravval, R/o Pendra, RS. Pendra Distn‘ct Bilaspur (Chhattisgarh), Office Address - Medical Complex, Telipara, District Bilaspur (CG). Versus State of Chhattjsgarh — through the Secretary Department of Education DKS Bhawan, Mantralaya, Raipur (CG). Collector, Bilaspur, (C.G). Mission Coordinator, Rajeev Gandhi Shiksha Mission, State Project Office, Raipur (C.G) The CEO. and Presiding Director, District Project, Rajeev Gandhi Shiksha Mission, Bilaspur, C.G. RESPONDENTS Distt. Bilaspur WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA m ABM: Shri A.V. Shridhar, counsel for the petitioner. Shri Kishore Bhaduri, Addl. Advocate General, for the State/ Respondents 1 & 2. ' ‘ Shri A.S. Kachhawaha, counsel for respondents 3 & 4. 2 W.P.(C! No. 846 of2008 s ORDER (2+ .o3.2009) W3 , Following order of the Court was passed by M SUNIL KUMAR SINHA J (1) Respondents 3 & 4 invited tender on 27.10.2006 for supply of various articles to Kasturiba Gandhi Balika Awasiya Vidyalay (KGBAVs) which are being run under the Sarva Shiksha ‘Abhiyan (SSA) of Rajeev Gandhi Shiksha Mission (RGSM). The specifications of the articles to be supplied were also mentioned in the tender notice specifying their weight, variety, quality and quantity etc., according to the articles. The tenders were opened and work order was issued to the petitioner on 21.12.2006. As per their policy, the respondents constituted a District Level Purchase Committee (DLPC) under the Chairmanship of the President, Zila Panchayat, Bilaspur. The Committee had to finalize the purchasing of the articles. The meeting of the purchase committee was held in the office of the Zila Panchayat, Bilaspur, regarding specification and quality control of the articles which would be purchased for KGBAVs and the Committee has inspected the articles which were supplied by the petitioner firm. According to the respondents, after inspection of the articles, it was found that some of the articles supplied by the petitioner firm were not upto the. mark, therefore, the Purchase Committee rejected those articles and a communication was made to the petitioner on 22.2.2007 for taking back those articles from various 3 wk W.P.(C) No. 846 of2008 KGBAVs (Annexure P-l). Thereafter, a memo dated 21.5.2007 (Annexure R—3/5) was issued to the petitioner and the petitioner was asked to show cause as to why an action should not be taken against it according to the terms of the tender documents. It is after all this, impugned order dated 16.12.2007 was passed and the petitioner firm was black— listed. (2) Learned counsel for the petitioner argued that the articles included in memo dated 22.2.2007 were strictly according to the specifications mentioned in the tender documents and the quality of materials was also upto the mark, therefore, the Purchase Committee has wrongly rejected those articles. If a proper inspection/evaluation would be made, all these facts would be clear. He argued that the purchase Committee be directed to accept those articles and pay the amount due to the petitioner firm along with earnest money and suitable. interest. He further argued that the black—listing part of the order dated 06.12.2007 be also set aside as (the same has been passed on a wrong pretext without giving proper opportunity of hearing to the petitioner. (3) On the other hand, learned counsel for the respective respondents opposed these arguments. (4) We have heard learned counsel for the parties at length .\\ and have also perused the records of the writ petition. l ’\ \ K \\ \ \ 4 W.P.1C) N0. 346 of2008 \5$ [5) Admittedly the contract is to govern by the terms and conditions of the tender documents, which were agreed between the parties. Clause 22 of the terms 8a conditions provides that in case of any dispute, the decision of the Purchase Committee shall be final. This appears to be a clause available to the party who raises a dispute in relation to" the contract. After examination of the claims raised by the petitioner firm, it appears that the firm has raised a dispute regarding rejection of the supplied articles; therefore, it has to go before the Purchase Committee as per the said clause. More over, it is a question of fact which cannot be gone into by this Court in writ jurisdiction under Article 226 of the Constitution of India as the decision on such disputed facts would require leading of evidence which would not be possible before a writ court. Therefore, the reliefs claimed in the petition regarding issuance of proper direction to the respondents to pay the amount of articles supplied after accepting them, cannot be granted and the arguments advanced in this regard cannot be sustained. However, the petitioner is free to raise dispute before the Purchase Committee as per the terms and conditions of the tender documents for taking a fresh decision in this regard or the petitioner firm may avail other appropriate remedies which are available to it in accordance with law. (6) So far as black 5 W.P.(C) No. 846 of2008 —listing of the petitioner firm without giving the opportunity of hearing 1‘s concerned, the Supreme Court held in the matter of Raghunath Thakur Vs. State oi Bihar and others, AIR, 1989 SC 620 that the order of blacklisting has the civil consequence for future business of person concerned and the person affected by order has right of being heard and making representations against the order even though rules do not provide so expressly. \eé (7) Where there is no proper opportunity of hearing in such matters, that act amounts to violation of principles of natural justice and the order of blacklisting without observance of the principles of natural justice has to be struck down. The Apex Court in the matter of Swadeshi Cotton Mills Vs. Union of India, AIR 1981 S.C. discussed at length the meaning of natural justice and observed as follows: “The phrase is not capable of a static and precise definition. It cannot be imprisoned in the strait~ jacket of a cast iron formula. Historically “natural justice” has been used in a way “which implies the existence of moral principles of self-evident and 818 unarguable truth.” Natural Justice by Paul Jackson, 2nd Ed., page l. In course of time Judges-nurtured in the traditions of British Jurisprudence, often invoked it in conjunction with. a reference to “equality and good conscience.” Legal experts of earlier generation did not. draw any distinction between “natural justice” and “natural law”. “Natural Justice” was considered as “that part on W.P.1C} No. 846 of2008 natural law which relates to the administration of justice.” (8) In the present case, memo dated 21.5.2007 (Annexure R~3/5) was issued. In the la line of the memo, it has been petitioner firm as per the conditins of the tender documents. In another memo dated 22.2.2007 also, it has \ are free to pass an appropriate order in this regard, if they st o 7 W.P.1C! No. 846 of2008 so desire, after giving due opportunity of hearing to the petitioner in accordance \s3 with law. (11) The writ petition is allowed to the extent indicated above. (12) No Orders as to the costs. 7i Sd/- Sd/' 1 f Sunil Kumar Sinha5 CHIEF JUSTICE , , J"dge