Jasti Venkateswara Raoioner vs The Government of A.P. and Others

C.V. Nagarjuna Reddy, J.—At the interlocutory stage, the writ petition is taken up for hearing and disposal with the consent of the learned Counsel for the parties. This writ petition is filed for a certiorari to quash letter No. 261/ATO/2009, dated 29.10.2009, of Respondent No. 4.

The Petitioner is a special class contractor registered with the Roads and Buildings Department. Tenders were called for execution of the works under NABARD assisted RIAD Scheme on 18.05.2009. One such work pertains to construction of a Degree College at Seethampeta in Srikakulam District. The Petitioner participated in the tender process and his tender was accepted. Before the contract was executed, Respondent No. 4 by the impugned letter addressed to the Petitioner informed the latter that verification of the authenticity of the experience certificate produced by him with the purported issuing authority, namely, Divisional Engineer-I, C.G. Housing Board, Raipur, revealed that the same is not genuine, as No. work was executed by the Petitioner in their organisation. It is further informed through the said letter that the Chief Engineer (R & B), NABARD, Hyderabad has issued an order to the effect that the Petitioner is debarred for a period of four years as per Clause 3.4 of instructions to tenderers of bid document and instructed the Superintending Engineer to initiate action in this regard. Accordingly, the Petitioner was informed that he was debarred from participating in the tender works of the Government of Andhra Pradesh for a period of four years from 24.10.2009 i.e., the date on which the Chief Engineer (R & B), NABARD has passed the order. This action of the Respondents is questioned in this writ petition mainly on the ground that neither Respondent No. 4 nor Respondent No. 5 has power or authority to debar the Petitioner, which in effect constitutes blacklisting.

At the hearing, Ms. S.Lakshmi Prameela, learned Counsel, representing Sri Patti Srinivasulu, learned Counsel for the Petitioner, substantiated the above plea of the Petitioner by relying upon G.O.Ms. No. 94, dated 01.07.2003. Clause-3 of Annexure-II to the said G.O., deals with suspension of business. Under this clause, the Registering Authority is empowered to suspend the business with the contractor for any indefinite period, pending full enquiry into the allegations, if it is prima facie of the view that the contractor is guilty of the offence in relation to the business dealings which if established would result in his removal, blacklisting and it is not desirable to continue business with the contractor. Clause-5 deals with blacklisting. Part(i) of sub-clause-(a) of Clause-5 envisages that the Head of the Department (Chief Engineer) may blacklist a contractor with the approval of the Government where there are sufficient and strong reasons to believe that the contractor has been guilty of malpractice such as irregular practices including formation of ring etc. A specific plea has been raised by the Petitioner in ground No. (d) of the affidavit filed in support of the writ petition on the lack of the authority in Respondent Nos. 4 and 5 to debar the Petitioner without prior permission from the competent authority. In the counter affidavit filed by Respondent No. 4, it is averred and asserted that the Chief Engineer (R&B), NABARD is competent to approve the tenders and suspend the business with the Petitioner for a specified period without reference to the Government and that the Chief Engineer and the Superintending Engineer are competent as per the instructions to the tenderers for debarring a contractor for a specified period, if he furnishes false/fabricated particulars.

In my opinion, this stand taken by the Respondents is wholly misplaced, because if the impugned action is treated as suspension of business, this power can be exercised only by the Registering Authority. Sub-clause (b) of Clause-1 of Annexure-II to G.O.Ms. No. 94, dated 01.07.2003, prescribed Registering Authorities for different classes of contractors. For special class contractors, to which category the Petitioner admittedly belongs, the Registering Authority is the Committee of Engineer-in-Chief and the Commissioner, Commissioner ate of Tenders. It is not the pleaded case of the Respondents that the Engineer-in-Chief has taken the decision to debar the Petitioner. It is only the Chief Engineer, who is stated to have passed an order and directed the Superintending Engineer to take the follow-up action. If the impugned order is treated as the one for blacklisting, as noted above, it requires the permission of the Government, which admittedly was not taken. Clause-3.4 of instructions to tenderers on which reliance is placed by the Respondents also does not help them as that is only an enabling clause which does not vest power in Respondent Nos. 4 and 5 independent of and de hors the procedure prescribed for suspension or blacklisting. In my opinion, a harmonious reading of these clauses would reveal that even in a case of debarring the contractor for a specified period, the same shall be treated as one for blacklisting as the result of both actions is identical and such action also shall require approval of the Government. Therefore, I am of the opinion that Respondent Nos. 4 and 5 have No. power or authority to debar the Petitioner from participating in the tender process without the approval of the Government. For the aforementioned reasons, the impugned order is quashed and the writ petition is accordingly allowed. This order, however, would not prevent the competent authority from exercising the power and taking appropriate action against the Petitioner strictly in accordance with Clause-5 of Annexure-II to G.O.Ms. No. 94, dated 01.07.2003, and the bid documents.

As a sequel to disposal of the writ petition, W.P.M.P. No. 31569 of 2009 and W.V.M.P. No. 297 of 2010 are disposed of as infructuous.