# M/S Hi Tech Pipe Ltd v. State of U.P. & Ors. 1048 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2024) 8 ILRA 1047
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-05
- **Case number:** Writ - C No. 11037 of 2024
- **Bench:** Shekhar B. Saraf, Manjive Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-hi-tech-pipe-ltd-v-state-of-u-p-ors-1048-indian-law-reports-allahabad-series-52377
- **Pages:** 4

## Headnote

Law
-
Blacklisting
of
contractors/firm
by
governmental
or
public
authorities
-
An
order
of
blacklisting is accordingly required to be
passed
taking
into
consideration
all
aspects and should not be passed in a
casual and cavalier manner as the same
has an impact on the person for which
such blacklisting is done. The entire concept
of blacklisting is required to be seen in a holistic
manner and what has to be appreciated that an
order of blacklisting/debarment of a particular
firm is in the nature of punishment which carries
with civil consequences for a firm. (Para 7)

In the present case, it was imperative upon the
respondent authorities to consider the reply
given by the petitioner in totality and the mere
rejection by using the term "reply is not
satisfactory" is uncalled for and cannot be
accepted. (Para 8)

Writ petition allowed. (E-4)

Precedent followed:

A.K. Construction Comp. Vs U.O.I. & ors., Writ-C
No. 20223 of 2024, decided on 09.07.2024
(Para 6)

Present petition challenges order dated
23.01.2024, passed by the Executive
Director, State Water and Sanitation
Mission, U.P., Lucknow whereby petitioner
has been debarred from making any
supply to any project of Jal Jeevan
Mission.

## Text

8 All. M/S Hi Tech Pipe Ltd. Vs. State of U.P. & Ors.
1047
question the very fact of making the
concession as recorded in the judgment."

12. The Hon'ble Supreme Court reiterated
the above mentioned principle in Roop Kumar
v. Mohan Thedani, (2003) 6 SCC 595 by
stating that: -

"11. ... It is to be noted that the parties
agreed before the High Court that instead of
remanding the matter to the trial court, it should
consider materials on record and render a
verdict. After having done so, it is not open to the
appellant to turn around or take a plea that no
concession was given. This is clearly a case of
sitting on the fence, and is not to be encouraged.
If really there was no concession, the only course
open to the appellant was to move the High
Court in line with what has been said in State of
Maharashtra v. Ramdas
Shrinivas
Nayak [(1982) 2 SCC 463 : 1982 SCC (Cri)
478] . In a recent decision Bhavnagar
University v. Palitana
Sugar
Mill
(P)
Ltd. [(2003) 2 SCC 111 : 2002 AIR SCW
4939]..."

13. So far as the petitioner's contention
based on the judgment in the case of Himalayan
Coop. Group Housing Society (Supra) is
concerned, in the aforesaid case it has been held
that generally, admissions of fact made by a
counsel are binding upon the client as long as
they are unequivocal but the client or the court is
not bound by the lawyer's statements or
admissions as to matters of law or legal
conclusions. The admission in the present case
was not regarding a matter of law or legal
conclusions. The Hon'ble Supreme Court has
held that in some cases, lawyers can make
decisions without consulting the client, while in
others, the decision is reserved for the client. The
lawyer can make decisions as to tactics without
consulting the client, while the client has a right
to make decisions that can affect his rights.
Therefore, if the lawyer assessed that there was
no chance of success of the entire appeal and he
decided to restrict his prayer for waiver of the
penalty, it cannot be said that he acted absolutely
without any authority and that might be the
reason as to why the petitioner did not initiate
any proceedings against his Advocate who had
given the concession.

14. In view of the aforesaid discussion,
I am of the considered view that the petitioner
cannot be permitted to dispute before this Court
the correctness of the happenings recorded by the
appellant authority i.e. Commissioner Lucknow
Division, Lucknow in the impugned order
09.05.2024 to the effect it had been submitted by
the learned counsel for the petitioner that the
petitioner was willing to pay the deficient
amount of stamp duty and he was confining his
prayer for waiver of the penalty. However, it will
be open for the petitioner to move an appropriate
application before the Commissioner Lucknow
Division, Lucknow for disputing the correctness
of the averments recorded in the impugned order
and in case any such application is filed by the
petitioner,
the
Commissioner,
Lucknow
Division, Lucknow shall decide the same
expeditiously, without granting any unnecessary
adjournment to any of the parties.

15. The writ petition is disposed off in light
of the aforesaid observations.
----------
(2024) 8 ILRA 1047
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.08.2024

BEFORE

THE HON'BLE SHEKHAR B. SARAF, J.
THE HON'BLE MANJIVE SHUKLA, J.

Writ - C No. 11037 of 2024

M/S Hi Tech Pipe Ltd. ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
1048 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Ronak
Chaturvedi,
Swati
Agrawal
Srivastava

Counsel for the Respondents:
C.S.C., Sanjay Kumar Om

A.
Public
Law
-
Blacklisting
of
contractors/firm
by
governmental
or
public
authorities
-
An
order
of
blacklisting is accordingly required to be
passed
taking
into
consideration
all
aspects and should not be passed in a
casual and cavalier manner as the same
has an impact on the person for which
such blacklisting is done. The entire concept
of blacklisting is required to be seen in a holistic
manner and what has to be appreciated that an
order of blacklisting/debarment of a particular
firm is in the nature of punishment which carries
with civil consequences for a firm. (Para 7)

In the present case, it was imperative upon the
respondent authorities to consider the reply
given by the petitioner in totality and the mere
rejection by using the term "reply is not
satisfactory" is uncalled for and cannot be
accepted. (Para 8)

Writ petition allowed. (E-4)

Precedent followed:

A.K. Construction Comp. Vs U.O.I. & ors., Writ-C
No. 20223 of 2024, decided on 09.07.2024
(Para 6)

Present petition challenges order dated
23.01.2024, passed by the Executive
Director, State Water and Sanitation
Mission, U.P., Lucknow whereby petitioner
has been debarred from making any
supply to any project of Jal Jeevan
Mission.

(Delivered by Hon'ble Shekhar B. Saraf, J.
& Hon'ble Manjive Shukla, J.)

1. Heard Sri Anoop Trivedi, learned
Senior Advocate assisted by Sri Ronak
Chaturvedi, learned counsel appearing for
the petitioner, learned Standing Counsel
appearing for Respondent No.1 and Sri
Sanjay
Kumar
Om,
learned
counsel
appearing for Respondents No.2 and 3.

2. Petitioner through this writ petition
has challenged the order dated 23.1.2024
passed by the Executive Director, State
Water
and Sanitation Mission, U.P.,
Lucknow whereby petitioner has been
debarred from making any supply to any
project of Jal Jeevan Mission.

3. Learned Senior Advocate
appearing for the petitioner has argued that
while passing the impugned order dated
23.1.2024 the Executive Director has not
considered the reply submitted by the
petitioner at all and only this much has
been said that petitioner's reply has not
been found satisfactory. He further argues
that vide order dated 23.1.2024 petitioner
firm has been debarred from making supply
for an indefinite period whereas the
Hon'ble Supreme Court in catena of
judgments had categorically held that
debarment or blacklisting cannot be done
for an indefinite period.

4. On the other hand, Sri Sanjay
Kumar Om, learned counsel appearing for
the contesting respondents submits that
reply submitted by the petitioner to the
show cause notice has not been found
satisfactory and therefore, the impugned
order has been passed. He further submits
that the impugned order cannot be termed
as an order for blacklisting for an indefinite
period as the term of State Water and
Sanitation Mission itself shall come to an
end on 31.12.2024.

5. We have considered the rival
arguments
advanced
by
the
learned
counsels appearing for the parties and we
8 All. M/S Hi Tech Pipe Ltd. Vs. State of U.P. & Ors.
1049
find that before passing the impugned order
dated 23.1.2024 petitioner was issued a
show cause notice, to which petitioner
submitted a detailed reply and also made a
request for re-testing of pipes supplied by
the petitioner. The reply submitted by the
petitioner has not been considered at all
while passing the impugned order dated
23.1.2024 and only this much has been said
that the reply submitted by the petitioner
has not been found satisfactory. We are of
the view that once proper reply was
submitted, it was obligatory on the
respondents to consider the entire reply and
thereafter by recording reasons the order of
blacklisting/debarment could have been
passed. We also find that the impugned
order dated 23.1.2024 proceeds to debar the
petitioner firm for an indefinite period as it
is the routine phenomenon that the term of
the Schemes/Missions is extended from
time to time.

6.

This
Court
in
A.K.
Construction Company v. Union of India
and Others (Writ-C No.20223 of 2024
decided on July 19, 2024), after examining
the Supreme Court judgment in M/s Kulja
Industries Limited -v- Chief Gen. Manager
W.T. Proj. BSNL & Ors. (Civil Appeal No.
8944 of 2013), has held as follows:

14. Upon a perusal of the
relevant paragraphs above, it is evident
that the judgement brings forward several
critical principles concerning the judicial
scrutiny
of
decisions
to
blacklist
contractors by governmental or public
authorities. First, the inherent power to
blacklist a contractor is vested in the entity
awarding the contract, typically the State
or its instrumentalities. This authority does
not necessarily require explicit statutory
authorisation but must conform to fairness
and reasonableness. It is also to be noted
that any governmental or public authority's
decision to blacklist a contractor is open to
judicial review, ensuring adherence to
natural justice principles, particularly audi
alteram partem and the doctrine of
proportionality. This means courts can
examine such decisions to ensure they are
just
and
balanced.
Further,
before
blacklisting a contractor, the entity must
provide a fair hearing, allowing the
contractor to present their case and defend
against the allegations or reasons for
blacklisting. The decision to blacklist must
also be reasonable, fair, and proportionate
to the gravity of the alleged offence or
breach,
avoiding
arbitrariness
or
discrimination. Additionally, actions by
State authorities, including blacklisting
decisions, must pass the reasonableness
test under Article 14 of the Indian
Constitution, which ensures equality before
the law and prevents arbitrary State
actions. Furthermore, precedents and legal
standards established in prior judicial
decisions, such as Erusian Equipment &
Chemicals Ltd. -v- State of W.B., reported
in (1975) 1 SCC 70 and subsequent cases
like Radha krishna Agarwal and Ors. -v-
State of Bihar & Ors., reported in (1977) 3
SCC 457, shed light on the legal framework
guiding the judicial review of blacklisting
decisions. These principles collectively aim
to ensure that the power to blacklist is
exercised judiciously, upholding fairness,
reasonableness, and proportionality while
safeguarding contractors' rights to a fair
hearing and defense.

7.

The
entire
concept
of
blacklisting is required to be seen in a
holistic manner and what has to be
appreciated
that
an
order
of
blacklisting/debarment of a particular firm
is in the nature of punishment which carries
with civil consequences for a firm. An
1050 INDIAN LAW REPORTS ALLAHABAD SERIES
order of blacklisting is accordingly required
to be passed taking into consideration all
aspects and should not be passed in a
casual and cavalier manner as the same has
an impact on the person for which such
blacklisting is done.

8. In light of the same, we are of the
view that it was imperative upon the respondent
authorities to consider the reply given by the
petitioner in totality and the mere rejection by
using the term "reply is not satisfactory" is
uncalled for and cannot be accepted.

9. In view of the aforesaid reasons,
this writ petition is allowed. The order
dated 23.1.2024 is quashed with liberty to
respondents to pass fresh order after
considering the reply submitted by the
petitioner.
----------
(2024) 8 ILRA 1050
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.08.2024

BEFORE

THE HON'BLE MAHESH CHANDRA
TRIPATHI, J.
THE HON'BLE PRASHANT KUMAR, J.

Writ - C No. 15996 of 2022

Smt. Madhubala Jaiswal ...Petitioner
Versus
Real Estate Appellate Tribunal & Ors.
 ...Respondents

Counsel for the Petitioner:
Pankaj Jaiswal

Counsel for the Respondents:
Anuj Pratap Singh, Ashish Agrawal, Mohd.
Afzal, Wasim Masood

A. Real Estate Law - Allotment of land - As
per the doctrine of "commodum ex injuria
sua nemo habere debet", it is settled law
that no party can take advantage of their
own fault. (Para 33)

No one can be permitted to take undue and
unfair advantage of his own wrong to gain
favourable interpretation of law. It is a sound
principle that he who prevents a thing from
being done shall not avail himself of the nonperformance he has occasioned. A wrong doer
ought not to be permitted to make profit out of
his own wrong. (Para 38)

The authorities cannot be allowed to take
undue advantage of their own default in
failure to act in accordance with law
within a reasonable time. (Para 39)

In the present case, the undisputed fact remains
that the respondent no. 3-UPSIDA allocated the
plot to the petitioner without holding proper
title, resulting in a delay of nearly four years to
acquire the title. This delay was obviously not
attributable to the petitioner but solely due to
the actions and internal issues of respondent
no. 3. Therefore, respondent no. 3 cannot take
advantage of the delay or default that they
themselves caused and ask for interest to be
paid for that period. (Para 40)

The only bone of contention before the Court is
whether the UPSIDA is entitled to levy
interest on the remaining balance due
from the petitioner during the period in
which the delay was attributable to
UPSIDA itself. According to the terms of the
allotment letter, the petitioner was required to
pay 25% of the total premium amount within 30
days of the allotment, following which UPSIDA
was obligated to execute the lease deed in
favour of the allottee. In this instance, despite
the petitioner having paid 80% of the premium
amount,
UPSIDA
failed
to
execute
the
"Conveyance Deed" or hand over possession
until January 25, 2021, due to internal issues
within UPSIDA. (Para 41)

B. In the interest of justice, there cannot
be a discrepancy in the rate of interest
applied. It is unjustifiable for UPSIDA to
impose an interest rate of 14%, later reduced to
12%, for the period of delay, which is solely
attributable to UPSIDA, caused by its own