Disposed

Sri.G. Nithin Sai v. The Union of India

Andhra Pradesh HC13 Sept 2021WP/20067/2021

Case brief

AI extract

What is this about?

The Supreme Court held that a writ petition against a show cause notice is not maintainable under Article 226 unless the action suffers inherent lack of jurisdiction. Since the petitioner's reply was pending, the Court directed the authority to examine it and pass appropriate orders after a hearing.

What did the court decide?

Direction to respondent No.3 to verify and examine the petitioner's explanation dated 03.09.2021 and pass appropriate orders after a hearing.

Sri.G. Nithin Sai Vs The Union of India — Public Procurement and Tenders | Andhra Pradesh HC (2021)

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THE HON’BLE SRI JUSTICE A.V.SESHA SAI

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WRIT PETITION No.20067 OF 2021

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ORDER:

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Heard Gada Venkateswarlu, learned counsel for the petitioner, Sri N.Harinadh, learned Assistant Solicitor General for Union of India, appearing for respondent No.1, Sri S.S.Varma, learned Standing Counsel for National Highways Authority of India, appearing for respondent No.2 and Sri K.Narsi Reddy, learned Government Pleader for Transport, Roads and Buildings, appearing for respondent No.3, apart from perusing the material available on record.

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Challenge in the present Writ Petition is to the show cause notice dated 02.09.2021 issued by the Superintending Engineer (R&B), NH Circle, Ananthapuramu. According to the pleadings in the affidavit filed in support of the Writ Petition, M/s. Nithin Sai Constructions is a partnership firm, for which the deponent of the writ affidavit is the Managing Partner. It is stated that the petitioner herein participated in the process initiated by the respondents, inviting tenders for formation of bypass to Mudigubba on NH-42 from Km 130/400 to 137/500 (total length of 7.749 kms) in the State of Andhra Pradesh and the estimated cost of the work is Rs.94.942 Crores. The cause of action which prompted the writ petitioner to invoke the jurisdiction of this Court under Article 226 of the Constitution of India, as observed supra, is a show cause notice dated 02.09.2021 which came to be issued by respondent No.3. The Superintending Engineer, while stating that the petitioner did not furnish the details of work package No.KDP/APRBRp/1 under NDB loan assistance in the existing commitments “B” value in the bid submitted for the subject work, called upon the petitioner herein to

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submit explanation as to why action should not be initiated for material misrepresentation under Clauses 2.6.2, 2.6.3 and 4.3(b) of the Request For Proposal (RFP) document.

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According to the learned counsel for the petitioner, the very show cause notice issued by respondent No.3 is highly illegal, arbitrary, unreasonable and violative of Articles 14 and 19(1)(g) of the Constitution of India, besides being opposed to the principles of natural justice. In elaboration, it is further submitted by the learned counsel that without properly verifying the clauses in the joint bidding venture for joint venture entered into in between M/s. Lekcon Infrastructure Private Limited and the petitioner and also various documents including the letter dated 25.08.2021 of respondent No.3 addressed to the Auditor and the certificate issued by the Auditor dated 30.08.2021, the Superintending Engineer issued the impugned show cause notice dated 02.09.2021.

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On the contrary, strenuously opposing the very maintainability of the Writ Petition, it is maintained by the learned Assistant Solicitor General, appearing for respondent No.1 and Sri K.Narsi Reddy, learned Government Pleader for respondent No.3 that in the absence of the contention and the stand taken by the petitioner herein that the impugned action suffers from inherent lack of jurisdiction and prohibited by law, the present Writ Petition filed under Article 226 of the Constitution of India cannot be maintained before this Court against a show cause notice. It is further submitted by the learned counsel that in response to the impugned show cause notice dated 02.09.2021, the petitioner herein already submitted an explanation on 03.09.2021 and without waiting for the response from respondent No.3, the petitioner

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herein has come up before this Court by way of the present Writ Petition and according to the learned Government Pleader, there is no cause of action for the writ petitioner to approach this Court and the present Writ Petition is a premature one.

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It is absolutely not in controversy that in response to the show cause notice dated 02.09.2021, which is impugned in the present Writ Petition, the petitioner herein submitted an explanation/objections/ reply on 03.09.2021 and it is not the case of the petitioner herein that respondent No.3 passed any orders thereafter. It is not in dispute that the issue is now pending consideration before respondent No.3. It is also not the case of the petitioner herein, as evident from the pleadings on record, that respondent No.3 herein is not the authority competent to issue the show cause notice. It is a settled and well-established principle of law that the Writ Petition against a show cause cannot be maintained under Article 226 of the Constitution of India, unless the impugned action/impugned order suffers from inherent lack of jurisdiction. In the absence of such a contingency in the case on hand, this Court is not inclined to delve into various factual controversies sought to be pressed into service by the learned counsel for the petitioner to substantiate his stand. However, since the explanation submitted by the petitioner herein, according to the petitioner, is pending consideration before respondent No.3, this Court deems it appropriate to dispose of the Writ Petition with a direction to respondent No.3 to verify and examine the explanation dated 03.09.2021 and also the contents therein and pass appropriate orders/take appropriate action strictly in accordance with law, as expeditiously as possible, after affording opportunity of hearing to the petitioner.

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With the above observations, this Writ Petition stands

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disposed of. There shall be no order as to costs of the Writ Petition.

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Miscellaneous Petitions pending, if any, in this case shall stand

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closed.

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___________________ A.V.SESHA SAI, J Date: 13.09.2021 siva

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THE HON’BLE SRI JUSTICE A.V.SESHA SAI

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WRIT PETITION No.20067 OF 2021

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Date: 13.09.2021

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siva

Sri.G. Nithin Sai v. The Union of India

Case brief

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Sri.G. Nithin Sai v. The Union of India

Case brief

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