Ramky Infrastructure Ltd. vs The State of Bihar and Others

Jyoti Saran, J—The writ petition is a company registered under the Companies Act, 1956 having its registered office at Hyderabad. The petitioner is aggrieved by the tender notice published on 26.3.2015, a copy of which is placed at Annexure-35 to the writ petition whereby tenders have been invited for construction of the Administrative Training Institute and the Rural Development Institute at Bodh Gaya under the authority of the Executive Engineer, Building Construction Department, Gaya on 26.3.2015. The petitioner further seeks a writ in the nature of mandamus for directing the respondents to permit the petitioner to complete the remaining work in the construction of the institute in question. An order of blacklisting was passed by the Engineer-in-Chief-cum-Additional Commissioner-cum-Additional Secretary vide Memo No. 303 dated 09.1.2015, a copy of which is placed at Annexure-D to the counter affidavit of the State and which is sought to be questioned through I.A. No. 5072 of 2015.

Even while the writ petition is pending consideration that an order bearing Memo No. 1478 has been passed on 19.9.2015 by the Executive Engineer, Building Division, Gaya whereby the agreement entered in between the State in its Building Construction Department and the petitioner bearing SBD No. 4 of 2010-11 was cancelled and the security deposit as well as the earnest money of the petitioner has been forfeited. The order also directs that the loss suffered by the State in the re-tender of the work would be realized from the petitioner. The said order has been placed on record vide Annexure-S2 to the second supplementary counter affidavit of the State and is sought to be questioned by the petitioner vide I.A. No. 8211 of 2015.

Considering that the orders put to question through the interlocutory application in fact are the foundations for the issuance of the tender by the State impugned in the writ petition hence the petitioner is permitted to question the orders in the present proceedings itself.

Facts of the case briefly stated is that the petitioner responded to a tender floated by the respondent State for construction of the Administrative Training Institute and the Bihar Rural Development Institute at Bodh Gaya which was published on 25.9.2009. The petitioner was successful in the tender and an agreement was entered in between the State in its Building Construction Department and the petitioner bearing SBD No. 4 of 2010-11, a copy of which is placed at Annexure-3. The agreement was executed on 08.5.2010 between the Executive Engineer, Building Construction Department and the petitioner. The value of the work estimated was Rs. 66,93,96,011/- as is manifest from the agreement and the time of completion of work was two years commencing from 06.5.2010. Certain issues cropped up and ultimately the plots was made available to the petitioner on 01.10.2010 after almost five months from the scheduled commencement. The petitioner sought extension of time explaining constraints which dragged the work beyond the completion vide his letter dated 10.4.2012 and which was granted under the orders of the Chief Engineer, (South) on the basis of recommendation of the Superintending Engineer. A second extension was prayed on 30.7.2012 for extension until 28.12.2013 which was also accepted and time was extended until 30.6.2013. Surprisingly even before the extension granted would expire that charging the petitioner of slow progress, a show cause against blacklisting was issued on 27.2.2013 and which was responded to by the petitioner. The Chief Engineer, (South) vide order passed on 12.4.2013 ordered for blacklisting of the petitioner and which was communicated by the Executive Engineer, Building Division, Gaya vide letter bearing Memo No. 550 dated 18.4.2013 placed at Annexure-30. The order while blacklisting the petitioner further directed for closure of contract as well as forfeiture of the security deposit and the earnest money. The petitioner being aggrieved moved this Court in CWJC No. 9327 of 2013 and a Bench of this Court vide judgment and order dated 04.4.2014 finding merit in the contention of the petitioner allowed the writ petition in the following terms:

"However, in view of the large number of documents brought on the record including the documents of the respondents as also the impugned order dated 12.4.2013 itself, it is evident that the respondents have also been prima facie responsible for part of the delay in the execution of work and thus it is not open to them to sit in judgment so far as these facts and issues are concerned. To what extent the respondents could be held guilty of the delay is a matter which ought to be adjudicated by an independent forum, in this case in view of the existence of the arbitration clause the Bihar Public Works Disputes Arbitration Tribunal, and only after those facts are adjudicated the question of blacklisting could have been taken up by the respondents and not before that in terms of the law laid down by this Court in M/s. N.C.C. case (supra).

(Emphasis supplied by me)

The writ application is, accordingly, allowed and the impugned order of blacklisting dated 12.4.2013 and also letter dated 18.4.2013 communicating the same are both quashed. Since the closure of contract and the order of forfeiture of earnest money and security deposit are consequential upon the order of blacklisting, the same are also quashed with liberty to the respondents to issue fresh notice of termination of the contract in accordance with the agreement between the parties in which it would also be open to them to pass orders of forfeiture of earnest money or security deposit, etc. in terms of the contract subject to the right of the petitioner to assail them in appropriate proceedings."

The Bench while rejecting the contention of the petitioner on the jurisdiction of the Chief Engineer to pass the order of blacklisting upheld the contentions on other issues and set aside the order of blacklisting passed on 12.4.2013 which was circulated vide Memo dated 18.4.2013. Liberty was granted to the respondents to move afresh in the matter of blacklisting, termination of contract as well as for forfeiture of earnest money and security deposit. The judgment of the Bench is placed at Annexure-32 of the writ petition.

It is following the liberty granted in the order of this Court present at Annexure-32 that the Engineer-in-Chief-cum-Additional Commissioner-cum-Special Secretary issued a fresh show cause notice for blacklisting of the petitioner on 19.12.2014 (Annexure-33). The petitioner responded to the show cause vide his reply dated 23.1.2015 present at Annexure-34 and while reminding the State authorities of their obligations cast under the order passed in the writ proceedings, the respondents were requested to proceed accordingly. According to the petitioner without passing any order on the show cause that an Invitation of Bid was published on 26.3.2015 by the Executive Engineer, Building Construction Department, Gaya impugned at Annexure-35 and the petitioner being aggrieved filed the writ petition.

As I have already discussed even when the matter remained pending that certain other orders have been passed in the proceedings leading to cancellation of contract and forfeiture of the security deposit and earnest money and which has been questioned through interlocutory applications. In fact even when the writ petition is pending consideration before this Court questioning the ''Invitation of Bid'' that the respondents have gone ahead with the tender in which the petitioner has also participated but the contest was drawn in favour of one M/s. Kashish Developers, Ranchi, Jharkhand and even an agreement was entered. The petitioner in the circumstances filed I.A. No. 5908 of 2015 for impleading M/s. Kashish Developers as party respondent No. 8 and even M/s. Kashish Developers on their own have also filed an interlocutory application bearing I.A. No. 6184 of 2015 seeking impleadment as a respondent in opposition to the prayer made in the writ petition. Considering the nature of contest as well as the stage at which it stands, both the interlocutory applications are allowed and M/s. Kashish Developers is permitted to be arraigned as respondent No. 8. Learned counsel for the petitioner would carry out the impleadment.

Mr. Y.V. Giri, learned senior counsel has appeared for the petitioner while the State is represented by Mr. Madhuresh Prasad, learned G.P.-12 and the intervener-respondent is represented by Mr. Jitendra Singh, learned senior counsel.

Mr. Giri, learned senior counsel appearing for the petitioner has referred to the order passed by this Court in the earlier round of contest present at Annexure-32 to submit that the entire facts leading to the contest stands noted in the order of the Bench and requires no further reiteration. It is contended that it was only on grounds of delay that the action of blacklisting and closure of contract as well as forfeiture of the earnest money and security deposit had been taken but the learned Single Judge has taken note of the circumstances which contributed to the delay and has even held the respondents prima facie responsible for part of the delay in execution of the work. It is the contention of Mr. Giri that since the foundation for the impugned action rested on the delay in completion of the work, once it was held by this Court that the respondents themselves are also responsible for the delay and thus not entitled to sit in judgment on the issue which requires adjudication by an independent forum viz the Bihar Public Works Contracts Disputes Arbitration Tribunal then the respondents could not have proceeded against the petitioner without an adjudication of the dispute by the tribunal. He submits that admittedly the respondents have not chosen to approach the tribunal rather Engineer-in-Chief has perpetuated the illegality in issuing another show cause notice on 19.12.2014 against blacklisting which is impugned at Annexure-33. With reference to the reply to the show cause filed by the petitioner present at Annexure-34, Mr. Giri referred to paragraph-4 and 5 thereof to submit that even when the attention of the Chief Engineer was drawn towards the illegality in the proceedings yet the respondents have defiantly proceeded to even issue a fresh Notice Inviting Tenders for the bid vide Annexure-35 through the Executive Engineer. It is the argument of Mr. Giri that this action of the respondents amounts to overreaching the orders of this Court present at Annexure-32. With reference to the statement made in paragraph-65 of the writ petition it is contended that the writ petitioner without prejudice to his rights and claims advanced through the writ petition responded to the bid and which has gone in favour of the intervener-respondent. Learned counsel in reference to the order passed by this Court on 29.4.2015 has submitted that this Court while granting time to the State to file their counter affidavit issued a restraint order and the State respondents were directed not to create any third party rights in terms of the invitation to bid present at Annexure-35. Mr. Giri with reference to the statement made in paragraph-17 and 18 of the counter affidavit filed on behalf of the State submits that despite the interim order passed by this Court on 29.4.2015 yet the respondents have gone ahead with creation of third party rights by entering into an agreement with the intervener-respondent on 29.5.2015. He submits that although a plea of ignorance of the interim order has been taken by the respondents to justify their illegal action but the circumstances is reflective of the defiant attitude of the respondents. It is contended that despite the order of this Court, the respondents have again blacklisted the petitioner vide Annexure-D to the counter affidavit on 09.1.2015 and even the contract has again been rescinded on 14.5.2015 vide Annexure-F. According to Mr. Giri by virtue of the order passed by this Court in the earlier round of proceedings, the contract of the petitioner stood restored and since the judgment and order of the writ court was never questioned by the respondents before the Division Bench hence being an inter party decision they were bound by the same. As per Mr. Giri, in case the respondents intended to yet proceed against the petitioner they could only proceed in the manner so provided under the order of the writ court and in no other manner. It is the contention of Mr. Giri that once the writ court has found the respondents themselves guilty of causing delay, then the State as a contracting party cannot become an adjudicator by saddling the delay entirely on the petitioner which apparently would be contrary to the observations of the writ court. It is the contention of Mr. Giri that any action to be taken by the respondents had to be in tune with the judgment relied upon by the writ court rendered in the case of M/s NCC Ltd. Vs. The State of Bihar and Others, (2013) 1 PLJR 952 . It is the argument of Mr. Giri that since the award of contract in favour of the intervener-respondent and the execution of agreement is in violation of the restraint order issued by this Court, hence the orders are a nullity. Learned counsel in support of his submission that any action taken and any order passed in contravention of an interim order of a court is the nullity, has relied upon the following judgments.

"(i) Manohar Lal (D) by Lrs. Vs. Ugrasen (D) by Lrs. and Others, (2010) 6 JT 41 : (2010) 6 SCALE 151 : (2010) 11 SCC 557 : (2010) AIRSCW 6282 : (2010) AIRSCW 6821 : (2011) AIRSCW 2158

(ii) Mulraj Vs. Murti Raghonathji Maharaj, AIR 1967 SC 1386 : (1967) 3 SCR 84

(iii) Surjit and others Vs. Harbans Singh and others etc. etc., AIR 1996 SC 135 : AIR 1995 SC 135 : (1995) 6 JT 415 : (1995) 5 SCALE 212 : (1995) 6 SCC 50 : (1995) 3 SCR 354 Supp

(iv) CWJC No. 2875 of 2012 (Mumukshu Kumar Chaudhary v. State)"

The thrust of the argument of Mr. Giri has been that the orders of blacklisting and cancellation of contract as well as of forfeiture of the security deposit/earnest money are in teeth of the judgment passed by this Court present at Annexure-32 and thus are unsustainable for even when the Bench while granting liberty to the respondents to proceed afresh required them to follow the law laid down in the case of M/s. NCC Ltd. but they have failed to do so.

The argument of Mr. Giri has been contested by Mr. Madhuresh Prasad, learned G.P.-12. Mr. Prasad while admitting to certain lapses on the part of the respondents in implementing the order passed by this Court present at Annexure-32 submits that the errors are unintended and the Department has taken appropriate steps for its rectification. With reference to the order present at Annexure-32 he submits that the liberty granted by the court was two fold and this Court while requiring the respondents to move the Tribunal in case they intended to go for blacklisting of the petitioner, also reserved right in them to draw a separate proceedings for termination of contract with the only rider that it should be in accordance with the agreement. It is thus the submission of Mr. Prasad that even if the official respondents would be required to approach the tribunal in case they would want the blacklisting of the petitioner, the order also reserves the right in their favour to initiate proceedings for cancellation of the contract in the light of the stipulations present in the agreement, a copy of which is placed at Annexure-4. With reference to Clause-3 of the Clause of Contract present at Annexure-4 he submits that the circumstances in which the contract can be terminated/rescinded is discussed therein and clause-(iii), (iv) and (v) at page 67 would be fully applicable to the case of the petitioner who has failed to complete the work within the stipulated date and has neglected to carry out his obligation. He submits that even when repeated extensions were granted by the Department and the contract involved huge money yet the petitioner has failed to complete the work even after the extensions. According to Mr. Prasad whereas a proceeding for blacklisting is to be carried out as per the provisions of the Bihar Contractor Registration Rules, 2007, the cancellation of the contract is an action taken by the State by virtue of the powers present in the agreement itself. According to Mr. Prasad the two proceedings derive their source from different statutory instruments. While admitting that the earlier order passed by the respondents was a composite order under the Bihar Contractor Registration Rules, he submits that the Bench while granting liberty was conscious of the distinct source of power vested in the authorities for proceeding against the petitioner and it is for this reason that while the respondents were directed to approach the tribunal in the matter of blacklisting but so far as the issue of cancellation of contract is concerned, the respondents were given liberty to issue notice in accordance with the agreement entered in between the parties. It is thus submitted that though the order of blacklisting passed on 09.1.2015 present at Annexure-D to the counter affidavit was in ignorance of the legal position, the said infirmity has been corrected with the issuance of Annexure-J which is a minute of the proceedings held on 18.8.2015 in the light of the order passed in the writ petition and whereunder the order dated 9.1.2015 present at Annexure-D was stayed. Mr. Prasad next referring to Annexure-S1 dated 26.8.2015 has submitted that a show cause notice was issue to the petitioner but was not responded and as a consequence on 19.9.2015 vide Annexure-S2, the contract has been rescinded and the security deposit and earnest money forfeited. According to Mr. Prasad the contention of the petitioner that it is only by taking recourse to the tribunal that any action could be initiated against the petition, is fallacious. He submits that the proceedings initiated against the petitioner in terms of clause-3 of the agreement for cancellation of the contract was never prohibited by the writ court rather the liberty is eloquently present. Mr. Prasad has referred to a judgment of the Supreme Court reported in Joshi Technologies International Inc. Vs. Union of India and Others(2015) 8 AD (SC) 428 : (2015) 277 CTR 409 : (2015) 374 ITR 322 : (2015) 4 MLJ 739 : (2015) 6 SCALE 632 : (2015) 7 SCC 728 : (2015) 232 TAXMAN 201 and with reference to paragraph-69 submits that the principles for judicial review in contractual matters has been elaborately discussed and it has been held that where the dispute is within the realm of contract or interpretation thereof then the discretionary remedy under Article 226 of the Constitution is not available. Mr. Prasad also referred to a judgment of the Supreme Court reported in Sanjay Kumar Shukla Vs. Bharat Petroleum Corporation Ltd. and Others, (2014) AIRSCW 4945 : (2014) 2 SCALE 127 : (2014) 3 SCC 493 that the issue of public interest is paramount in contractual matters.

The argument of Mr. Prasad has been seconded by Mr. Jitendra Singh, learned senior counsel appearing for the intervener-respondent to submit that even if there was a restraint order from creating any third party rights, it does not forestall the tender process altogether. He submits even if the choice has gone in favour of the intervener, the selection would be guided by the result in the writ petition. He submits that the contract in question is of public law character and the petitioner having failed to discharge his obligations, cannot complain of the impugned action. He submits that the petitioner has willingly participated in the re-tender and has been unsuccessful. It is with reference to the order of this Court passed on 29.4.2015, contended that even when the petitioner claims to have reserved his right to maintain the writ petition in paragraph-65 while participating in the re-tender and even when an interim order was passed on 29.4.2015 by this Court in the present proceedings but neither the petitioner has drawn the attention of this Court to the said submission nor his right has been protected. According to Mr. Singh the petitioner having taken his risk, cannot turn around to maintain the writ petition. Learned counsel has referred to a judgment of the Supreme Court reported in (2007) 4 SCC 517 and with reference to paragraph 21 and 22 of the judgment he submits that the power of judicial review in contractual matter stands discussed. For the same proposition and to canvass the limited extent of interference by the High Court in contractual matters, learned counsel has referred to a judgment of the Supreme Court reported in Air India Ltd. Vs. Cochin Int., Airport Ltd. and Others, AIR 2000 SC 801 : (2000) 1 CTC 594 : (2000) 1 JT 481 : (2000) 1 SCALE 346 : (1999) 4 SCALE 477(1) : (2000) 2 SCC 617 : (2000) 1 SCR 505 : (2000) AIRSCW 351 : (2000) 1 Supreme 351 ; paragraph-7. Mr. Singh has also questioned the conduct of the petitioner to submit that even when the order of the writ court was passed on 04.4.2014 and as per the petitioner himself the contract stood restored and although the invitation to bid was published on 26.3.2015 i.e. almost a year thereafter but there is nothing on record of the writ proceedings which demonstrates the work discharged by the petitioner in this one year and the steps taken by him for completion of the project. Mr. Singh has also referred to an unreported judgment of this Court rendered in the case of M/s. Petroleum v. State arising from LPA No. 316 of 2014 to support the public law character of the dispute and the extent of interference therewith in the accompanying circumstances. It is the contention of Mr. Singh that the petitioner is not worthy of any indulgence.

Mr. Giri in his short reply has contested the argument of Mr. Prasad and Mr. Singh to submit that none of the counsel have demonstrated that the directions of the writ court stands complied. He further with reference to paragraph-52 and 53 of the writ petition submits that the materials present at the site stands discussed alongwith the willingness of the petitioner to complete the project. Mr. Giri has also referred to an unreported judgment of this Court rendered in CWJC No. 7259 of 2015 (Mora Tollways v. the State of Bihar & Ors.) in support of his submissions that the extent of judicial review in contractual sphere stands discussed.

I have heard learned counsel for the parties and I have perused the records.

Whereas it is the argument of Mr. Giri that although the orders impugned have been passed in purported compliance of the order passed in CWJC No. 9327 of 2013 but in fact it is an attempt to overreach the same, such argument has been contested by the counsel for the respondents to submit that it is in compliance thereof.

It is thus to be seen whether the orders impugned in this writ petition are in compliance of the directions of the writ court or in contravention thereof. The operative portion of the order passed by this Court in CWJC No. 9327 of 2013 has been reproduced by me and the observations/directions of the Hon''ble Court is in following terms:

"(a) However, in view of large number of documents brought on record.......it is evident that the respondents have been prima facie responsible for the part of the delay in execution of work and thus it is not open to them to sit in judgment so far as these facts issues are concerned."

(b) "To what extent the respondents could be held guilty of the delay is a matter which ought to be adjudicated by an independent forum, in this case in view of the existence of the arbitration clause the Bihar Public Works Disputes Arbitration Tribunal."

(c) "Only after those facts are adjudicated the question of blacklisting could have been taken up by the respondents and not before that in terms of the law laid down by this Court in M/s. N.C.C. case (supra)."

(d) "Since the closure of contract and the order of forfeiture of earnest money and security deposit are consequential upon the order of blacklisting, the same are also quashed with liberty to the respondents to issue fresh notice of termination of the contract in accordance with the agreement between the parties......."

The directions issued by this Court is self eloquent and leaves no room for any interpretation. The only ground on which the impugned orders of blacklisting and cancellation of contract has been passed rests on the delay attributed to the petitioner. There is no other allegation against the petitioner other than that he has caused unpardonable delay in execution of the work despite extensions. That the respondents have committed a number of blunders to finally pass the order dated 19.9.2015 whereby the contract has been cancelled and the security deposit as well as earnest money has been forfeited vide order present at Annexure-S2 enclosed with the second supplementary counter affidavit is manifest from the sequence of events itself. In fact the manner in which the entire matter has been handled by the respondents raises many a question as to their understanding of the Courts order and its implementation. It does not require an investigation to hold that the respondents have proceeded in a premeditated manner in the present case. Even when this Court while attributing a part of the delay on the respondents themselves has required this issue to be adjudicated by an independent Tribunal viz the Bihar Public Works Contract Disputes Arbitration Tribunal and only after the issue of delay is adjudicated upon by the Tribunal that the Court has given liberty to the respondents to take up the issue of blacklisting but whether by ignorance or with deliberate consciousness, the Engineer-in-Chief-cum-Additional Commissioner-cum-Special Secretary, Building Construction Department yet proceeds to issue a fresh show cause notice on 19.12.2014 (Annexure-33) which is again against blacklisting. This is plainly preposterous for it is a clear reflection of the attitude of the respondents. I say so because even when the petitioner attempted to draw attention of the Engineer-in-Chief towards the overreach by filing his reply on 23.1.2015, yet without correcting the error, a press notice of invitation for bid is published on 26.3.2015. It is at this stage that the petitioner approached this Court with submission in paragraph-65 that without prejudice to the issue raised he has also filed his application against the tender. In my opinion, in view of the declaration made before this Court, no disqualification can be attached on such ground. Although Mr. Prasad has tried to defend the action of the respondents on the anvil of inadvertent error but in my opinion, the documents on record reflect a different picture because although an interim order was passed on 29.4.2015 by this Court restraining creation of any third party rights but the respondents have gone ahead to even do so and have created third party rights by entering into an agreement with the intervener-respondent on 29.5.2015 which they claim to be an act due to ignorance. In between the Engineer-in-Chief-cum-Additional Commissioner-cum-Special Secretary vide order bearing Memo No. 303 dated 09.1.2015 has also passed an order of blacklisting which is present at Annexure-D to the counter affidavit. Even when the dispute has reached this Court and an interim order was passed on 29.4.2015 yet the Executive Engineer, Building Division, Gaya vide order bearing No. 576 dated 14.5.2015 without seeking permission of this Court and without issuing any show cause notice to the petitioner against the cancellation of contract simply proceeds to order for its cancellation in the light of the order of blacklisting dated 09.1.2015. By the same order the security deposit and the earnest money has also been forfeited which is placed at Annexure-F to the counter affidavit. It is only on 18.8.2015 that a Committee headed by the Engineer-in-Chief realized the mistake and stayed the blacklisting order dated 09.1.2015 which is placed at Annexure-J to the supplementary counter affidavit. Immediately thereafter on 26.8.2015 another show cause was issued by the Executive Engineer, Building Division, Gaya asking the petitioner to show cause against cancellation of the contract and forfeiture of security deposit and earnest money which is placed at Annexure-K & Annexure-S1 to the second supplementary counter affidavit and which is followed by the order of cancellation of contract and forfeiture of earnest and security deposit passed on 19.9.2015 enclosed at Annexure-S2 to the second supplementary counter affidavit filed on 30.9.2015 whereby the contract has been cancelled and the deposits forfeited.

In my opinion, there is a clear attempt by the respondents to overreach and bye pass the directions of this Court. The orders passed by the respondents are a clear reflection of their premeditated intention and also their lack of understanding of practice and procedure once a matter is pending consideration before any Court. Propriety demands that the authorities keep their hands off once a matter reaches the Court and no action is to be taken thereafter without the leave of the Court. A rather irresponsible approach is reflected in the action of the respondent authorities including the Engineer-in-Chief.

As I have observed at the out set the blunders are too many and are difficult to be written off as a mere case of ignorance and lack of understanding of the legal process. The foundation for the action taken rests on the order of this Court passed in CWJC No. 9327 of 2013 and the directions contained therein leave no room for any confusion that the respondents were also equally held responsible for the delay. It is again not in dispute that it is only on delay count that the impugned actions have been taken against the petitioners. Thus once this Court has held the respondents also responsible for the delay and has further required this issue to be adjudicated by the Tribunal and only whereafter any action for blacklisting could be undertaken and considering that the writ court has held that the order of cancellation of contract and forfeiture of security and earnest deposits are consequential upon the order of blacklisting and since there is no other ground on which the contract is sought to be cancelled then in my opinion until such time that the issue of delay would be adjudicated by the Tribunal neither the respondents are within their jurisdiction to initiate any action for blacklisting nor can they proceed to cancel the contract.

Mr. Prasad very laboriously has tried to distinguish the distinct nature of action undertaken but the answer is found in the order of the writ court itself where the Court has held that the order of closure of contract, forfeiture of earnest money and security deposit is a consequential action, upon an order of blacklisting and which order in absence of any challenge before the superior Court has become final and binding on the parties. In such uncontested circumstances even if there be distinct source of power for initiating proceedings for blacklisting and cancellation of contract but since the foundation for each of these actions rests on the adjudication of the delay aspect then in my opinion the respondents are precluded from passing any order of cancellation until the issue of delay is adjudicated by the Tribunal in terms of the order of the Writ Court passed in CWJC No. 9327 of 2013.

I have consciously categorized the direction of the Writ Court in the earlier round of litigation which clearly spells out the obligation cast upon the respondent authorities, should they choose to proceed against the petitioner. The Writ Court having held the respondents partially responsible for the delay and having required the issue to be deliberated by an independent forum i.e. the Tribunal as a condition precedent for the process of blacklisting and having held that the orders of closure of contract and forfeiture of the security deposit are consequential upon blacklisting then certainly until such time that the issue of delay is adjudicated by the Tribunal, the respondents cannot proceed against the petitioner for either blacklisting or cancellation of contract.

In result, the entire action of the respondents beginning from the show cause notice against blacklisting dated 19.12.2014 (Annexure-33), the order of blacklisting dated 09.1.2015 (Annexure-D), the invitation to bid present at Annexure-35, the order of cancellation of contract and forfeiture of the security deposits dated 14.5.2015 (Annexure-F), the show cause notice against cancellation of contract and forfeiture of security deposit and earnest money dated 26.8.2015 (Annexure-K and Annexure-S1) and the order of cancellation of contract and forfeiture of the deposits dated 19.9.2015 (Annexure-S2) are all held illegal and are accordingly set aside and consequentially the agreement entered by the official respondents with the intervener-respondent pursuant to Annexure-35 besides being held illegal is a nullity in view of the interim order passed on 29.4.2015.

In view of the conclusion so drawn, the other issues raised and contested by the parties pale into insignificance. The writ petition is allowed.

Considering the conduct of the respondents and the manner in which the entire issue has been handled, this Court is inclined to impose heavy cost on the respondents for their overreach but with much reluctance has restrained itself. Nonetheless the respondents are warned to be careful in future lest they find themselves gasping for answers.