1W.P. No.10023/2014 (M/s NCC Limited vs. State of Madhya Pradesh and others) 02.03.2016 Shri Shekhar Sharma, Advocate for the petitioner. Shri Samdarshi Tiwari, Dy. Advocate General for the respondents/State. Heard counsel for the parties.
1. Instead of hearing the argument limited to application for vacating stay and for confirmation of ad-interim order, as the question is short question and the same arguments would be advanced at the final hearing, by consent of counsel appearing for both the parties, we decided to take up the matter for final disposal forthwith.
2. This writ petition under Article 226 of the Constitution takes exception to the order passed under the signature of Engineer-in-Chief and Registration Officer dated 23rd June, 2014, blacklisting the petitioner-Company from the panel of Contractors, eligible to participate in tender process for indefinite period.
3. The sole ground stated in the order is that the affiant of the declaration-cum-affidavit submitted on behalf of the petitioner-Company along with the registration application had failed to disclose that Nagarjuna Construction Company Limited has already been blacklisted by order dated 30th March, 2010 with immediate effect. In other 2words, the order of blacklisting has been passed because of false or incorrect declaration made by the affiant of the petitioner while submitting registration form. No other ground has been stated in the impugned order.
4. In the context of this ground, two contentions have been raised by the counsel for the petitioner. The first contention is that the format of declaration-cum-affidavit to be filed along with the registration form, did not require disclosure of the fact that some other Company of which the affiant is a Director, has already been blacklisted. Secondly, assuming that the prescribed declaration envisages declaration of that position, the blacklisting of some other Company of which the affiant incidentally happened to be the Director, can be of no avail and could not have been made ground to blacklist the petitioner-Company as Nagarjuna Construction Company Limited was blacklisted only for one year in terms of order dated 30th March, 2010 till 31st August, 2011.
5. According to the respondents, however, the petitioner- Company is none other than Nagarjuna Construction Company Limited. In other words, the petitioner-Company is the alter-ego of the Nagarjuna Construction Company Limited and for which reason must suffer the same consequence and blacklisted for indefinite period because 3of incorrect and false declaration submitted along with the registration application.
6. Reverting to the first contention of the petitioner, we find force in that submission. The format of declaration- cum-affidavit prescribed, is as follows:- ‘‘शपथ पत्र का प्रारूप मै श्री/श्रीमति/कु. ........................................ आत्मज श्री ............................ आयु.................... कथन करता/करती हंू कि:- 1. यह है कि मेरे/हमारे द्वारा केन्द्रीयत व्यवस्था के अंतर्गत निमर्ाण विभागों में अ/ब/स श्रेणी में पंजीयन हेतु प्रस्तुत पत्र के साथ संलग्न समस्त दस्तावेज सही और सत्य है A 2- ;g कि मेरे/हमारे फर्म/कंपनी द्वारा प्रस्तुत दस्तावेजों का विभाग द्वारा पुष्टि कराने पर त्रुटिपूर्ण अथवा सही नही पाये जाने पर जो भी नियमानुसार कार्यवाही विभाग द्वारा की जायेंगी वह मुझे/हमें स्वीकार होंगे। 3. यह है कि मेरे/हमारे फर्म/कंपनी द्वारा किसी भी कार्य विभाग में कोई भी कार्य अपूर्ण नहीं छोड़ा गया है और मुझे/हमारी, फर्म/कंपनी को पूर्व में किसी भी कार्य विभाग द्वारा ब्लैक लिस्ट/निचली श्रेणी में पदनावत/पंजीयन का निलंबन/निरस्तीकरण संबंधी कोई कार्यवाही नहीं हुई है, और न ही कोई शासकीय देनदारी शेष है। शपथग्रहीता सत्यापन 4मैं उपरोक्त शपथग्रहीता शपथपूर्वक कथन सत्यापित करता/करती हू कि उक्त शपथ पत्र का पूर्ण कथन मेरे निजी ज्ञान एवं विश्वास के आधार पर सत्य है एवं इसका सत्यापन आज दिनाॅंक ..................... को मेरे द्वारा किया गया । शपथग्रहीता टीपः- नोटरीत शपथ पत्र 10 रूपयेे के नान जूडिशियल स्टाम्प पर प्रस्तुत किया जावें’’
7. Even on a fair reading of the respective clauses in the said affidavit and in particular, Clause 3, there is no requirement of disclosing the fact that some other Company in which the affiant of the applicant Company is a Director, has already been blacklisted. In absence of such requirement, the petitioner-Company cannot be blacklisted on the ground of non-disclosure of that fact as such.
8. The argument of the respondents that the petitioner- Company is the alter-ego of the Nagarjuna Construction Company Limited and, therefore, the statement made in the declaration-cum-affidavit filed on behalf of the petitioner in paragraph-3 was incorrect, does not commend to us. The two Companies are independent and separate legal entities. Each of the said Company is a juristic person. It would have 5been a different matter, if the eligibility criteria or the form of declaration-cum-affidavit had required the affiant to also additionally disclose whether the subsidiary company or sister company of the applicant Company of which the affiant incidentally happens to be the Director, has since been blacklisted. If such requirement was specified in the eligibility clause or the declaration and the affiant had failed to give the correct information, it was open to the Authority to proceed against the petitioner-Company, but not otherwise.
9. The argument of the petitioner that in any case the blacklisting of Nagarjuna Construction Company Limited could not have been made the basis for taking action against the petitioner-Company, also commends to us. In that, the said Nagarjuna Construction Company Limited was blacklisted only until 31st August, 2011, vide order dated 30th March, 2010. That period having ended and the application for registration filed by the petitioner-Company was subsequent thereto, unless the eligibility clause so provided, the Authority could not have disregarded the application of the petitioner-Company. In our opinion, even on this count, the impugned order cannot be sustained as the fact of non-disclosure would be of no relevance as it was not a case of subsisting blacklisting of Nagarjuna 6Construction Company Limited on the date when application for registration came to be filed by the petitioner-Company.
10. The petitioner may be also justified in contending that Nagarjuna Construction Company Limited was blacklisted for limited duration upto 31st August, 2011, but, the impugned order transcends beyond that period and is a case of indefinite blacklisting of the petitioner-Company until further orders. Petitioner is relying on the decision of the Supreme Court in the case of M/s Kulja Industries Limited vs. Chief Gen. Manager W.T. Proj. BSNL & Ors. reported in 2013 STPL (LE) 48088 SC to contend that such blacklisting for indefinite period, should be eschewed. However, it is not necessary for us to dilate on this argument any further having found that the impugned order is based on irrelevant and extraneous consideration.
11. Accordingly, this writ petition succeeds. The impugned order is quashed and set aside. As a result, the accompanying applications for stay and vacating stay (I.A. No.1695/2016) are also disposed of. No order as to costs. (A.M. Khanwilkar) (Sanjay Yadav) Chief Justice Judge