Writ - Delay - Blacklisting

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2020 SCeJ 1956





(i) Constitution of India ,  Article 226 – Writ  - Delay – if the delay is properly explained and no third party rights are being affected, the writ court under Article 226 of the Constitution may condone the delay - There is no doubt that the High Court in its discretionary jurisdiction may decline to exercise the discretionary writ jurisdiction on ground of delay in approaching the court - But it is only a rule of discretion by exercise of self-restraint evolved by the court in exercise of the discretionary equitable jurisdiction and not a mandatory requirement that every delayed petition must be dismissed on the ground of delay - The Limitation Act stricto sensu does not apply to the writ jurisdiction - The discretion vested in the court under Article 226 of the Constitution therefore has to be a judicious exercise of the discretion after considering all pros and cons of the matter, including the nature of the dispute, the explanation for the delay, whether any third party rights have intervened etc. - The jurisdiction under Article 226 being equitable in nature, questions of proportionality in considering whether the impugned order merits interference or not in exercise of the discretionary jurisdiction will also arise - Limitation Act, 1956.  . Basanti Prasad vs. Bihar School Examination Board and others, (2009) 6 SCC 791,  Moon Mills Ltd. vs. Industrial Court, AIR 1967 SC 1450, Maharashtra SRTC vs. Balwant Regular Motor Service, AIR 1969 SC 329 and State of M.P. and Others vs. Nandlal Jaiswal and others, (1986) 4 SCC 566, referred.  #2020 SCeJ 1956 [Para 14]


(ii) Blacklisting – An order of blacklisting operates to the prejudice of a commercial person not only in praesenti but also puts a taint which attaches far beyond and may well spell the death knell of the organisation/institution for all times to come described as a civil death. #2020 SCeJ 1956


(iii)  Blacklisting –  Proper show cause notice  - The possibility always remains that if a proper show cause notice had been given and the reply furnished would have been considered in accordance with law, even if the respondents decided to blacklist the appellant, entirely different considerations may have prevailed in their minds especially with regard to the duration -  Appellant was not the successful tenderer – No goods were supplied - Show cause notice referred to further action in terms of the Tender for supplying misbranded medicine to the appellant -  Show cause notice did not state that action by blacklisting was to be taken, or was under contemplation, it only mentioned appropriate action in accordance with the rules of the Tender - The fact that the terms of the tender may have provided for blacklisting is irrelevant in the facts of the case - In absence of any supply by the appellant, the order of blacklisting invoking clauses of the Tender is a fundamental flaw, vitiating the impugned order on the face of it reflecting non application of mind to the issues involved - Even after the appellant brought this fact to the attention of the respondents, they refused to pay any heed to it - Explanation by the appellant dated 15.11.2008 in reply to the show cause notice finds no consideration by the respondents at any stage - Further, it specifies no duration for the same. #2020 SCeJ 1956



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