Full Text
HIGH COURT OF DELHI
Date of Decision: -7th February, 2023.
M/S HIGHWAYS ENGINEERING CONSULTANT ..... Petitioner
Through: Mr. Vikas Singh, Sr. Adv. with Ms. Nandadevi Deka, Ms. Deepeika Kalia, Mr. Rohan Chandra, Mr. Aditya Kaul, , Ms. Vaishnavi, Adv., Mr. Savyasachi Rawat, Adv.
(NHIDCL) & ANR. ..... Respondents
Through: Mr. Lalit Chauhan, Ms. Laxmi Chauhan, Ms. Jasmine Chauhan, Ms. Nikita Chauhan, Mr. Ramawtar Yadav, Mr. K.K. Sharma and Mr. Hiron Kashyap, Advocates for
NHIDCL.
Mr. Rakesh Kumar, CGSC with Mr. Sunil, Advocate for UOI.
JUDGMENT
1. This hearing has been done through hybrid mode.
2. The present writ petition challenges the impugned order dated 16th January, 2023 passed by Respondent No.1- NHIDCL by which the Petitioner has been declared as “non-performer”.
3. The background of the matter is that NHIDCL issued notice inviting tender consultancy services for supervision of construction and upgradation of “NH-7 to 2-lane with paved shoulder from Km.368.000 to Km.468.000 of Lameri to Paini under Chardham Pariyojna on EPC (Engineering, Procurement, Construction) basis” in the State of Uttarakhand. The Petitioner along with its JV partner entered into a contract dated 18th December, 2021 with NHIDCL and thereafter the work was commenced.
4. On 15th October, 2022 a show cause notice was issued by NHIDCL to the Petitioner in respect of various deficiencies. Replies dated 4th November, 2022 and 16th November, 2022 were filed by the Petitioner controverting the allegations put forth in the show cause notice. The Petitioner vide reply dated 16th November, 2022 also sought personal hearing to explain its position. Thereafter, the impugned order was passed declaring the Petitioner as a “non-performer”.
5. The case of the Petitioner is that in terms of MoRTH circular dated 7th October, 2021, if a party seeks personal hearing, the same ought to be granted. Mr. Vikas Singh, ld. Senior Counsel appearing for the Petitioner submits that the Petitioner has a good track record in terms of its performance in respect of the projects which have been allotted to it. It is his submission that most of the projects, even though awarded to the Petitioner during COVID-19 pandemic, are at an advanced stage of completion. Two out of the five projects have been completed and the other three are more than 90% complete.
6. It is his submission that the show cause notice was issued on 15th October, 2022 and a detailed reply was submitted by the Petitioner on 4th November, 2022. A further letter was also issued by the Petitioner on 16th November, 2022 seeking a personal hearing. Despite the said request of personal hearing, the same was not granted and the impugned order was passed. There are various other grounds, which are urged by ld. Senior Counsel for the Petitioner.
7. On the other hand, Mr. Lalit Chauhan, ld. Counsel appearing for NHIDCL submits that in the reply, no personal hearing was sought by the Petitioner. However, there are various breaches committed by the Petitioner which are not being raised today and the NHIDCL is willing to give a personal hearing to the Petitioner.
8. Heard. A perusal of the MoRTH circular dated 7th October, 2021 shows that if there are failures to detect deficiencies etc., under clause 3 of the MoRTH circular, debarment up to 2 years is permissible. However, as per clause 5 of the said circular, before debarring or declaring any entity as non-performer, an opportunity of filing a written reply and personal hearing, if so desired by the concerned party, is to be provided. Clause 5 of the MoRTH circular reads as under:
9. A perusal of the letter dated 16th November, 2022 issued by the Petitioner shows that apart from adding to the earlier grounds taken in the reply, the Petitioner also requests for an opportunity to explain its point of view in person before any punitive action is initiated against it.
10. In view of this request of the Petitioner and considering the fact that the impugned order was passed almost 2 months after the request for personal hearing was made by the Petitioner, in terms of MoRTH circular dated 7th October, 2021, it is directed that a personal hearing shall be granted to the Petitioner to explain its position.
11. After hearing the Petitioner, a reasoned order shall be passed within a period of 2 months from today.
12. The impugned order dated 16th January, 2023 is, accordingly, set aside only on this sole ground, leaving all the issues on merits open to be dealt with by the Petitioner during the course of personal hearing.
13. Needless to add, this Court has not gone into the merits of any of the breaches which have been alleged against the Petitioner.
14. The writ petition, along with pending applications is disposed of in the above terms.
PRATHIBA M. SINGH JUDGE FEBRUARY 7, 2023/dk/sk