M/S N D Waddar And Co vs. The State Of Karnataka
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Cause title — parties, addresses and appearances
CAV ORDER
The petitioner is before this Court calling in question Government Order dated 25-08-2023 and seeks a consequent direction to consider its representations all dated 21-11-2023 for release of funds.
Heard Sri Bipin Hegde, learned counsel appearing for the petitioner, Sri K.Shashikiran Shetty, learned Advocate General appearing for respondent No.1 and Sri M.R.C. Ravi, learned senior counsel appearing for respondent No.2. 3. Facts, in brief, germane, are as follows: -
The petitioner is said to be a registered partnership firm, registered as PWD Class-I Contractor and empanelled as Category-I contractor under the Krishna Bhagya Jala Nigam Niyamitha (hereinafter referred as ‘the Corporation’ for short) and is claiming to be having expertise in execution of irrigation works like construction of canals, extension, renovation and modernization of
4 canal works and all works incidental thereto. The 2nd respondent notifies a tender for the work of extension, renovation and modernization of distributaries from 1 to 15 and its laterals including structures of Narayanpur right bank canal system (Package-I). Pursuant to the process of assessment of tender, a letter of acceptance was issued in favour of the petitioner on 23-07-2021 and an agreement thereon comes to be executed between the petitioner firm and the Corporation. Therefore, comes the award of contract for the purpose of extension, renovation and modernization of distributaries from 1 to 18 and its laterals including structures of Narayanpur right bank canal system. The petitioner, in terms of the work order so issued, undertook the work and completed it by investing from its own funds. What remained was 2% of the work. In terms of contract, bills in the interregnum, on immediate basis, were submitted by the petitioner. Upon satisfaction of completion of work, the work completion certificate was issued by the Quality Controllers in respect of 7 bills pertaining to Package-I and . On completion of work and submission of bills, no amount was paid to the petitioner. To that effect, the petitioner
5 submitted several representations which began on 28-06-2022 up to 21-11-2023. 3. 2. In the interregnum, certain complaints were registered before the Lokayukta and Estimates Committee of the Karnataka Legislature. A Government Order then comes to be issued on 10-06-2022 appointing an Expert Committee to quantify the defects in the estimates and works undertaken in respect of distributaries. The Committee which was headed by a Secretary as its Chairman, was directed to submit a report to the Estimates Committee of the Karnataka Legislature. The order is said to have been withdrawn by Government on 4-01-2024. In the interregnum, it appears the petitioner completed remaining works. On such completion, several complaints again sprang with regard to non-completion of work and complaints before the Estimates Committee yet again. The bills, in the interregnum, were sent to the 2nd respondent for their clearance, all of which did not result in clearance. When things stood thus, on the score that none of the bills of the petitioner were being cleared deliberately, the petitioner knocks at the doors of this Court in the subject petition.
6
This Court owing to the submissions made from time to time had directed release of certain funds on completion certificate so issued. This Court on 21-06-2024 had passed the following order: “Learned counsel for respondent submits that 69% of amount so claimed is already paid.
Learned counsel for the petitioner taking this Court through the statement of objections filed by the respondents to contend that the amount in due even according to the respondents is totalling to Rs.536.43 crores.
Learned counsel submits that for non-payment of these bills are for wanting the submission of a quality control certificate.
Learned counsel for the respondents submits that the quality control certificate as on today has not been submitted, except the bill in R.A.No.7, which pertains to Rs.47/- crores.
Learned counsel for the petitioner would submit that all the quality control certificates are already in place and respondents are dodging the issue.
To resolve the issue at least for the present, learned counsel for respondents is directed to secure instructions with regard to the release of 40% or 50% of the amount that is in due, pending submission of everything till the end.
List this matter on 26.06.2024, at 4.00 p.m.
Interim order granted earlier, is extended till the next date of hearing.”
7 Again on 26-06-2024 the following order:
“The petitioner is before this Court seeking the following prayer:
“i) ISSUE a writ, order or direction in the nature of Certiorari to quash the Government Order passed by the 1st respondent in No. ಒಇ/98/ಇ/2023 ೆಂಗಳ ರು ಾಂಕ: 25.08.2023 vide ANNEXURE - A.
ii) ISSUE a writ, order or direction in the nature of the mandamus to consider the representations made by the petitioner dated 21.11.2023, vide ANNEXURE-N & N1 and to pay the amount in due to the petitioner.
iii) ISSUE any writ order or direction, which deemed fit in the circumstances of the case in the interest of justice and equity”.
Learned Senior counsel Sri.M.R.C.Ravi appearing for the respondent – KBJNN would take this Court through the statement of objections to contend that most of the bills of the petitioner are cleared and what remains is Rs.536/- crores.
Learned counsel for the petitioner submits that in all identical matters, where the matters have been referred to the one-man committee of Justice H N Nagamohan Das, the bills are cleared upto 75%, which the learned Advocate General in identical matters has accepted such submissions.
Learned Senior counsel for the respondent submits that 75% bill clearance would amount to another Rs.156/- or Rs.160/- crores to be paid to the petitioner. What is wanting in the case in favour of the petitioner is, a quality control certificate.
Learned counsel appearing for the petitioner submits that quality control certificate is already issued by them,
8 which is also appended to the petition at Annexure- M dated 25.08.2023. Learned Senior counsel would clarify that this quality control certificate was issued only on RA-7, the running account 7, which pertains to Rs.47/- Crores and not the entire Rs.536/- Crores.
The learned counsel for the petitioner would seek to clarify that this is the last bill that was pending and it is the quality control issued to this. All the bills are now quality control complaint, and therefore, would submit that the entire amount cannot be withheld and the amount will have to be released.
The learned Senior counsel would submit that the bills to the tune of 69% is paid and for package one, there is still quality control certificate to be issued.
Therefore, to strike a balance between the right of the petitioner to get the amount, and the right of the respondent to withhold the amount, I deem it appropriate to direct the respondent - KBJNN to release an amount of Rs.160/- Crores, for now.
Pending further orders, the same shall be released, within eight weeks from the date of receipt of the copy of this order, if not earlier.
List this matter on 26.07.2024, for further hearing.”
The 2nd respondent/Corporation did not comply with these orders of release of funds, but sought to file an application seeking recall of the interim order so passed. It is at that stage, the matter is heard.
9
The learned counsel appearing for the petitioner would vehemently contend, by taking this Court through the documents appended to the petition, that completion certificate is issued by the Competent Authority after being satisfied with the work done. Notwithstanding the same, only on the ground that bills have to be cleared, all kinds of objections are cropping up. It is not only of this case, but in every case, objections have cropped up. The Government deliberately to get over the work entrusted by the earlier Government, appointed a Committee headed by Justice H.N. Nagamohan Das to go into the veracity of claims. By going into the veracity, Sri Bipin Hedge, learned counsel submits, the Committee has found nothing wrong with petitioner’s work is his information and, therefore, the amount cannot be withheld on any ground whatsoever. The petitioner has invested huge sums by borrowing funds from various Banks and now the Banks are frowning upon the petitioner. The learned counsel would submit that the Corporation being a State under Article 12 of the Constitution of India, cannot be seen to behave in the manner in which it is wanting to take away the money of the citizen.
10
Per contra, learned senior counsel Sri M.R.C.Ravi appearing for the Corporation seeks to distinguish completion certificates holding that they concern only Package-I and not Package-II. Insofar as it concerns Package-I, certain amounts are released. Package-II is yet to be assessed in its appropriate form and, therefore, the amount cannot be immediately cleared. Insofar as direction issued by this Court as an interim measure, the Corporation has preferred an application seeking modification of the said order and admits that it has not released the amount as accepted or directed, as the case may be. He would, in all, submit that the petitioner will have to approach the civil Court, as the issue is with regard to clearance of bills or recovery of money, even if it is at the hands of the State.
I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.
11
The afore-narrated facts are not in dispute. The petitioner was a participant in the tender. The tender was notified on 18-05-2021 for the purpose of extension, renovation and modernization of distributaries from 1 to 15 and its laterals including structures of Narayanpur Right Bank Canal System (Package-I). The tender was for ₹828.40 crores. The petitioner participates in the tender. Pursuant to which, the petitioner is communicated letter of acceptance. The letter of acceptance reads as follows:
“Ref.No.KBJNL/EE/NRBC/DIV-5/PB/LOA/2021-22/299
Date:23-07-2021
To:
M/s N.D Waddar and Co,
PWD Class I Contractors,
H.O.#2-12-32A/54, Friends Colony,
Kalaburagi Road, Lingasugur-584 122. Dear Sir,
Letter of acceptance
Sub:- Issue of Letter of acceptance in respect of the work of Extension, Renovation and Modernization of Distributaries from 1 to 15 & its Laterals including Structures of Narayanpur Right Bank Canal System.(Package-I) (Indent No.:21211).
Ref:
This office Short term Tender Notification
letter No. 114 dated 18-05-2021. 12
M.D. KBJNL, Bangalore letter No.MD/ KBJNL/BOARD-130/TA-4/2021-22/926 Dated 23-07-2021. 3. Chief Engineer, KBJNL, O & M Zone, Narayanpur letter No.933 dated 23-07-2021. ---- With reference to the above subject, this is to notify you that your Tender dated 18-05-2021 for execution of the work of Extension, Renovation and Modernization of Distributaries from 1 to 15 & its Laterals including Structures of Narayanpur Right Bank Canal System. (Package-I) (Indent No.21211) for the contract price of Rupees Rs.828.40 crores (Eight Twenty Eight Crores and Forty Lakhs only) (amount in words and figures), as corrected and negotiated is hereby accepted as per the directions of the Managing Director, KBJNL, PWD Annexure Building, K.R. Circle, Bangalore vide letter at reference (2) above.
You are hereby requested to attend this office with details of monthwise physical and financial programme for completion of the above work for concluding the arrangement with the undersigned on or before within 20 days as per the terms and conditions of the bid document.
Yours faithfully, Executive Engineer, KBJNL NRBC Division-05, Rodalabanda.”
Pursuant to letter of acceptance, an agreement is entered into between the petitioner and the Corporation. The terms of agreement insofar as it is germane are as follows:
“KRISHNA BHAGYA JALA NIGAMA LIMITED (A GOVERNMENT OF KARNATAKA UNDER TAKING)
13
FORM OF AGREEMENT
Agreement No. 02/2021-22 Date: 23-07-2021
1 Name of Work
Extension, Renovation and Modernization of Distributaries from 1 to 15 & Its Laterals Including Structures of Narayanpur Right Bank Canal System.(Package-I) (Indent No. : 21211) 2 Name of Agency
Sri. M/S N D Waddar and Co, Class I Contractor, H.O.#2-12-32A/54, Friends Colony, Kalaburagi Road, Lingasugur-584122 3 Sanctioned Estimate No. Date & Amount CER No:328/2021-22 for Rs 851.22 Crores.
4 Tender Notification No & Date No. KBJNL/NRBC/D-5/PB/2021- 22/114Dated 18.05.2021
5 Amount put to Tender Rs.760,00,00,017.85/-(Excluding GST) 6 Contract Amount
Rs.828,40,00,019.30/-(Excluding GST) (Rs. Eight twenty eight crores fourty lakhs Ninteen rupees and thirty paisa only exclusive of GST) @ 9.00% Above the estimated cost put to tender of Rs 760,00,00,017.85/- (Excluding GST) 7 Stipulated period of Completion work 18 months (including watering period)
8 Authority
1) GO No.WRD 223 KBN 2020 Bengalore, Dated-22-04-2021 2) This office Short tern Tender Notification letter No:114 Dated:18-05-2021. 3) M.D. KBJNL, Bangalore letter No:MD/KBJNL/BOARD-130/TA-
14
This agreement is made on the 23rd day of July 2021 between Executive Engineer, KBJNL, NRBC Div-5. Rodalabanda Tq.Lingasugur, Dist.Raichur, State.Karnataka (hereinafter called “the employer”) of the one part and Sri. M/S N D Waddar and Co, Class I Contractor H.O.#2- 12-32A/54, Friends Colony, Kalaburagi Road, Lingasugur-584122 (herein after called "the contactor") of the other part.
Where as the employer is desirous that certain works should be executed viz Extension, Renovation and Modernization of Distributaries from 1 to 15 & Its Laterals Including Structures of Narayanpur Right Bank Canal System. (Package-1) (Indent No.: 21211) and letter of acceptance by the Chief Engineer, KBJNL, O & M Zone, Narayanpur vide letter No.933/2021-22 Date: 23.07.2021 has accepted a tender by the contractor for the execution, completion and maintenance of such works and the remedying of any defects therein, at a contract price of Rs.828,40,00,019.30/- (Rs. Eight twenty-eight crores fourty lakhs Ninteen rupees and thirty paisa only). Now this agreement witnesses as follows.”
The description of work is also appended to the agreement. This concerns Package-I. The tender that was notified was for two Packages - Package-I and Package-II. Insofar as Package-II is concerned, on the same date another letter of acceptance was issued with the same terms. It reads as follows:
4/2021-22/926 Dated: 23-07-2021. 4) Chief Engineer, KBJNL, O & M Zone, Narayanpur letter No:933 Dated:23-07-2021. 15 “No.KBJNL/NRBC/D-4/ERM-D-16 TO D-18-PKG-II/PB- 1/LOA/2021-22/476 Date:23-07-2021
To:
M/s N.D.Waddar and Co,
PWD Class-I Contractors,
H.O.#2-12-32A/54, Friends Colony,
Kalaburagi Road, Lingasugur-584 122. Dear Sir,
Letter of acceptance
Sub:- Issue of Letter of acceptance in respect of the work of Extension, Renovation and Modernization of Distributaries from 16 to 18 & its Laterals including Structures of Narayanpur Right Bank Canal System. (Package-II) (Indent No.:21212).
Ref:
This office Short term Tender Notification
letter No. 259 dated 18-05-2021. 2. M.D. KBJNL, Bangalore letter No.MD/ KBJNL/BOARD-130/TA-4/2021-22/927 Dated 23-07-2021. 3. Chief Engineer, KBJNL, Canal Zone No.1, Bheemarayanagudi letter No.540 dated 23-07-2021. **** With reference to above subject, this is to notify you that your Tender dated 05-06-2021 for execution of the work of Extension, Renovation and Modernization of Distributaries from 16 to 18 & its Laterals including Structures of Narayanpur Right Bank Canal System. (Package-II) (Indent No.21212) for the contract price of Rupees Rs.770.53 crores (Seven Seventy Crores and Fiftythree lakhs only) (Excluding GST), as corrected and negotiated is hereby accepted as per the directions of the Managing Director, KBJNL, PWD Annexure Building, K.R. Circle, Bangalore vide letter at reference (2) above.
You are hereby requested to attend this office with details of monthwise physical and financial programme for
16 completion of the above work for concluding the arrangement with the undersigned on or before within 20 days as per the terms and conditions of the bid document.
Yours faithfully, Executive Engineer, KBJNL NRBC Division-04, Chikkahonnakuni”
The only difference was, the first one was package-I and the second was package-II, as also the amount. A notice was issued to the petitioner to proceed with the commencement of work. The said notice issued reads as follows:
“No.KBJNL/NRBC/D-4/ERM-D-16 TO D-18-PKG-II/PB- 1/ WORKORDER/2021-22/477 Date:23-07-2021
To M/s N.D.Waddar and Co,
PWD Class-I Contractors,
H.O.#2-12-32A/54, Friends Colony,
Kalaburagi Road, Lingasugur-584 122. Issue of Notice to proceed with the work
Gentleman,
Sub:- Issue of Letter of acceptance in respect of the work of Extension, Renovation and Modernization of Distributaries from 16 to 18 & its Laterals including Structures of Narayanpur Right Bank Canal System. (Package-II) (Indent No.:21212) reg.
17 Ref:
This office Short term Tender Notification
letter No. 114 dated 18-05-2021. 2. M.D. KBJNL, Bangalore letter No.MD/ KBJNL/BOARD-130/TA-4/2021-22/927 Dated 23-07-2021. 3. Chief Engineer, KBJNL, Canal Zone No.1, Bheemarayanagudi letter No.540 dated 23-07-2021. 4. This office Agreement No.06/2021-22 dated 23-07-2021. ---- With reference to the above subject, this is to notify you that your Tender dated 05-06-2021 for execution of the work of Extension, Renovation and Modernization of Distributaries from 16 to 18 & its Laterals including Structures of Narayanpur Right Bank Canal System. (Package-II) (Indent No.21212) for the contract price of Rupees Rs.770,53,62,985.48/- (Rs.Seven Seventy Crores and Fifty-three lakhs Sixty-two Thousand Nine Hundred Eight-five rupees and Forty-Eight paisa only excluding GST), as corrected and negotiated is hereby accepted as per the directions of the Managing Director, KBJNL, PWD Annexure Building, K.R. Circle, Bangalore vide letter at reference (2) above. And in this regard an agreement has also been concluded vide reference No.4 above.
You are hereby instructed to proceed with the execution of the said works in accordance with the contract documents.
Encl: As above. Yours faithfully, Executive Engineer, KBJNL NRBC Division-04, Chikkahonnakuni”
18
In terms of the contract, the petitioner submitted bills in the prescribed format, as and when the work would get completed. But, no payment was made to bills which were all in place. Work completion certificate insofar as package-I and package-II both sprang from the hands of the Competent Authority. The completion certificate insofar as package-I is concerned issued by the Competent Authority, after inspection, reads as follows: “ಸಂೆ: ಕೃಾಜ:ಗು- ೕಗು : -2.: 22-23 ಾಂಕ: 07-02-2023
ಇವ"#ೆ, $ಾಯ&'ಾಲಕ ಅ ಯಂತರರು, PÀȨsÁd¤¤, J£ï.Dgï.©.¹ «¨sÁUÀ ¸ÀA.5, +ೋಡಲಬಂಡ.
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ಷಯ: Extension, Renovation, and Modernization of Distributaries from 1 to 15 & it's Laterals including Structues of Narayanapura Right Bank Canal System For Dy 9 to 15 of NRBC. (Package- 1) (Indent No 21211.)ರ $ಾಮ#ಾ"ಯ .. ಕೂ§ìಗಳ ಪ"ೕ4ಾ ಫ67ಾಂಶಗಳ ವರ ಕು"ತು..
ಉ:ೆ;ೕಖ: ಅ=ೕ>ಕ ಅ ಯಂತರರು, (ಗು) ವವ?ಾ@ಪಕ Aೇ&ಶಕರವರ ಕBೇ", ಕೃಾಜ, $ಾಂC: ೕ'ಗು ರವರ ಕBೇ" ಪತD ಸಂ.772 : 07.02.2023. ~~~~*~~~~ ªÉÄð£À «µÀAiÀÄ ºÁUÀÆ G¯ÉèÃRzÀ£ÀéAiÀÄ, Extension, Renovation, and Modernization of Distributaries from 1 to 15 & it's Laterals including Structues of Narayanapura Right Bank Canal System For Dy 9 to 15 of NRBC. (Package-1) (Indent No 21211.) PÁªÀÄUÁjUÉ ¸ÀA§A¢ü¹zÀAvÉ
19 ¹.¹. ಕೂ§ìಗಳ ವರ#ೆ ಅ=ೕ>ಕ ಅ ಯಂತರರು (ಗು..),ವವ?ಾ@ಪಕ Aೇ&ಶಕರವರ ಕBೇ", ಕೃಾಜ, $ಾಂC: ೕಮ+ಾಯನಗು ರವರು Eೕಲು ರುಜು /ಾ , ಉ:ೆ;ೕFತ ಪತDದ6; ಈ ಕBೇ"#ೆ ಕಳIJರು7ಾK+ೆ, ಸದ" ಫ67ಾಂಶಗಳನುL ಮೂಲ ಪDMಯ6; ಈ ಮೂಲಕ ತಮN ಮುಂನ ಕDಮ$ಾOP ಕಳIJಸ:ಾPAೆ ತಮN QಾR, ¸À»/- $ಾಯ&'ಾಲಕ ಅ ಯಂತರರು, ಕೃ.ಾ.ಜ.(), ಗುಣಯಂತDಣ ಾಗ, ೕಮ+ಾಯನಗು .”
A detailed bill was also submitted qua package-I. Same goes with package-II. The work completion certificate issued by the Executive Engineer i.e., the Competent Authority is as follows:
“ಸಂೆ: ಕೃಾಜ:ಗು- ೕಗು : -2.23-24: 334 ಾಂಕ: 25/08/2023
ಇವ"#ೆ, $ಾಯ&'ಾಲಕ ಅ ಯಂತರರು, ಕೃಾಜ, ಎW.ಆY. . ಾಗ ಸಂ.4 ZಕO[ೊನಕು\
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ಷಯ: Extension, Renovation, and Modernization of Distributaries from 16 to 18 & it's Laterals including Structues of Narayanapura Right Bank Canal System (Package-II) (Indent No 21212.)gÀ PÁªÀÄUÁjAiÀÄ ¹.¹. ಕೂ§ìಗಳ ಪ"ೕ4ಾ ಫ67ಾಂಶಗಳ ವರ ಕು"ತು.
ಉ:ೆ;ೕಖ: ಅ=ೕ>ಕ ಅ ಯಂತರರು, (ಗು) ವವ?ಾ@ಪಕ Aೇ&ಶಕರವರ ಕBೇ", ಕೃಾಜ, $ಾಂC: ೕ'ಗು ರವರ ಕBೇ" ಪತD ಸಂ. 248 ¢£ÁAPÀ:07.08.2023
20 ªÉÄð£À «µÀAiÀÄ ºÁUÀÆ G¯ÉèÃRzÀ£ÀéAiÀÄ, Extension, Renovation, and Modernization of Distributaries from 16 to 18 & it's Laterals including Structues of Narayanapura Right Bank Canal System (Package-II) (Indent No 21212.)gÀ, PÁªÀÄUÁjUÉ ¸ÀA§A¢ü¹zÀAvÉ ¹.¹. ಕೂ§ìಗಳ ªÀgÀ¢UÉ C¢üÃPÀëPÀ ಅ ಯಂತರರು (ಗು..), ವವ?ಾ@ಪಕ Aೇ&ಶಕರವರ ಕBೇ", ಕೃಾಜ, $ಾಂC: ೕಮ+ಾಯನಗು ರವರು Eೕಲು ರುಜು /ಾ , ಉ:ೆ;ೕFತ ಪತDದ6; ಈ ಕBೇ"#ೆ ಕಳIJರು7ಾK+ೆ, ಸದ" ಫ67ಾಂಶಗಳನುL ಮೂಲ ಪDMಯ6; ಈ ಮೂಲಕ ತಮN ಮುಂನ ಕDಮ$ಾOP ಕಳIJಸ:ಾPAೆ.
ತಮN QಾR, ¸À»/- $ಾಯ&'ಾಲಕ ಅ ಯಂತರರು, ಕೃ.ಾ.ಜ.(), ಗುಣಯಂತDಣ ಾಗ, ೕಮ+ಾಯನಗು .”
Therefore, both package-I and package-II did result in the Competent Authority issuing work completion certificate. But, no payment is made. Therefore, the petitioner begins to represent on the score that it has availed loan from various places and has executed the work close to ₹800/- crores and no amount is paid to the petitioner. Last of the representations is on 21-11-2023 which refers to earlier representations. The representation dated 21-11-2023 reads as follows:
“Ref: NDW/NRBC/Pkg-II/2023-24/29 Date: 21-11-2023
ಇವ"#ೆ ಇವ"#ೆ ಇವ"#ೆ ಇವ"#ೆ, /ಾನ /ಾನ /ಾನ /ಾನ ವವ?ಾ@ಪಕ ವವ?ಾ@ಪಕ ವವ?ಾ@ಪಕ ವವ?ಾ@ಪಕ Aೇ&ಶಕರು Aೇ&ಶಕರು Aೇ&ಶಕರು Aೇ&ಶಕರು,
21 ಕೃ ಕೃ ಕೃ ಕೃ.ಾ ಾ ಾ ಾ.ಜ.., 3ೇ ೇ ೇ ೇ ಮಹ ಮಹ ಮಹ ಮಹ :ೋ$ೋಪ^ೕP :ೋ$ೋಪ^ೕP :ೋ$ೋಪ^ೕP :ೋ$ೋಪ^ೕP ಕBೇ" ಕBೇ" ಕBೇ" ಕBೇ" ಪ_ರಕ ಪ_ರಕ ಪ_ರಕ ಪ_ರಕ ಕಟaಡ ಕಟaಡ ಕಟaಡ ಕಟaಡ $ೆ$ೆ$ೆ$ೆ.ಆY ಆY ಆY ಆY.ವೃತK ವೃತK ವೃತK ವೃತK ೆಂಗಳ ರು ೆಂಗಳ ರು ೆಂಗಳ ರು ೆಂಗಳ ರು.
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«µÀAiÀÄ: Extension, Renovation & Modemization of Distributaries from 16 to 18 & Its laterals including Structures of Narayanpur Right Bank Canal System (Package-II) (Indent No. 21212) PÁªÀÄUÁjAiÀÄ ©®è£ÀÄß ¥ÁªÀw¸ÀĪÀ PÀÄjvÀÄ.
G¯ÉèÃR: 1. M¥ÀàAzÀ ¸ÀA.6/2021-22 ¢£ÁAPÀ: 23-07-2021. 2. ªÀPïð DqÀðgÀ ¸ÀA.477 ¢£ÁAPÀ: 23-07-2021 3. £ÀªÀÄä ¥ÀvÀæ ¸ÀASÉå. NDW/NRBC/Pkg-II/2022-23/36 ¢£ÁAPÀ: 28-06-2022. 4. £ÀªÀÄä ¥ÀvÀæ ¸ÀASÉå. NDW/NRBC/Pkg-II/2022-23/43 ¢£ÁAPÀ: 18-07-2022. 5. £ÀªÀÄä ¥ÀvÀæ ¸ÀASÉå. NDW/NRBC/Pkg-II/2022-23/57 ¢£ÁAPÀ: 14-09-2022. 6. £ÀªÀÄä ¥ÀvÀæ ¸ÀASÉå. NDW/NRBC/Pkg-II/2022-23/68 ¢£ÁAPÀ:14-11-2022. EೕಲOಂಡ ಉ:ೆ;ೕಖ (1) ರನRಯ $ಾಮ#ಾ"ಯ ಒಡಂಬ $ೆಯನುL ಾಂಕ: 23-07-2021 bತK: ರೂ ರೂ ರೂ ರೂ.770,53,62,985=00 (c.ಎd ಎd ಎd ಎd.e [ೊರತುಪ [ೊರತುಪ [ೊರತುಪ [ೊರತುಪ ) ರೂಗf#ೆ ಕ+ಾರು ಒಪgಂದವನುL $ಾಯ&hಾ&ಹಕ ಇಂcಯY ಕೃiಾj ಾಗ ಜಲ ಗಮದ ಾರkಾಣಪlರ ಬಲದಂmೆ $ಾಲುhೆ ಾಗ ಸಂ.4 ZಕO[ೊನLಕು\ ಇವ+ೊಂ#ೆ /ಾ $ೊಳn:ಾPದುo, ಉ:ೆ;ೕಖ (2) ರನRಯ $ಾಮ#ಾ"ಯನುL 'ಾDರಂ ಸ:ಾPತುK. $ಾಮ#ಾ"ಯು ಪDಗMಯ6;ದು ಮು$ಾKಯದ ಹಂತ ತಲುರುತKAೆ.
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22 ಉ:ೆ;ೕಖ (3), (4) ಮತುK (5) ರನRಯ ಾp ಲು;ಗಳನುL 'ಾವM/ಾಡಲು $ಾಯ&hಾ&ಹಕ EAf¤ÃAiÀÄgÀgÀÄ, PÀȵÁÚ ¨sÁUÀå d® ¤UÀªÀÄ ¤AiÀÄ«ÄvÀ £Á.§.zÀA.PÁ®ÄªÉ «¨sÁUÀ ¸ÀA.4 aPÀ̺ÉÆ£ÀßPÀÄt ಇವ"#ೆ $ೋರ:ಾPತುK ಅದ+ೆ ¸ÀzÀjgÀªÀgÀÄ AiÀiÁªÀÅzÉà ಕDಮವನುL ಜರುPರುವlಲ;. ಈ#ಾಗ:ೇ $ಾಮ#ಾ" c6;ನ ಪD/ಾಣಗಳI Qೇ 95% ಪ_ಣ&#ೊಂ ದುo, ಇನೂL Qೇ 5% /ಾತD ಪD/ಾಣಗಳI $ಾಮ#ಾ" ಾp ಇರುತKAೆ, ಒಡಂಬ $ೆಯ Schedule-B ಪD$ಾರ Bill of quantities [ೆqಾrPರುವlಲ;. ಸ$ಾಲ$ೆO ಲು; 'ಾವMkಾಗAೆ $ಾರಣ Qೇ 5% $ಾಮ#ಾ"ಯ /ಾತD ಾp ಉfAೆ.
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ಇದಲ;Aೆ $ಾಮ#ಾ"ಯ ಪDಗM ಸಂಧಬ&ದ6; ಕ+ಾರು ಒಪgಂದದ Additional conditions of contract clause No.39 ರನRಯ ಕೃಷj ಾಗ ಜಲ ಮಗದ QC Authorities ಅವರ ಪ"ೕ>vೆ [ಾಗೂ ಗುಣ ಮಟaದ ಬ#ೆy ಪD/ಾಣ ಪತDಗಳನುL ಪmೆಯುವlದಲ;Aೆ
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24 Ref: NDW/NRBC/Pkg-1/2023-24/28 Date: 21-11-2023
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«µÀAiÀÄ: Extension, Renovation & Modernization of Distributaries from 1 to 15 & Its laterals including Structures of Narayanpur Right Bank Canal System (Package-1) (Indent No. 21211) PÁªÀÄUÁjAiÀÄ ©®è£ÀÄß ¥ÁªÀw¸ÀĪÀ PÀÄjvÀÄ.
G¯ÉèÃR: 1. M¥ÀàAzÀ ¸ÀA.2/2021-22 ¢£ÁAPÀ: 23-07-2021. 2. ªÀPïð DqÀðgÀ ¸ÀA.304 ¢£ÁAPÀ: 23-07-2021 3. £ÀªÀÄä ¥ÀvÀæ ¸ÀASÉå. NDW/NRBC/Pkg-I/2022-23/35 ¢£ÁAPÀ:28-06-2022. 4. £ÀªÀÄä ¥ÀvÀæ ¸ÀASÉå. NDW/NRBC/Pkg-I/2022-23/42 ¢£ÁAPÀ:18-07-2022. 5. £ÀªÀÄä ¥ÀvÀæ ¸ÀASÉå. NDW/NRBC/Pkg-I/2022-23/67 ¢£ÁAPÀ:14-11-2022. *** EೕಲOಂಡ ಉ:ೆ;ೕಖ (1) ರನRಯ $ಾಮ#ಾ"ಯ ಒಡಂಬ $ೆಯನುL ಾಂಕ: 23-07-2021 bತK: ರೂ ರೂ ರೂ ರೂ.828,40,00,019=00 (c.ಎd ಎd ಎd ಎd.e [ೊರತುಪ [ೊರತುಪ [ೊರತುಪ [ೊರತುಪ ) ರೂಗf#ೆ ಕ+ಾರು ಒಪgಂದವನುL $ಾಯ&hಾ&ಹಕ ಇಂcಯY ಕೃiಾj ಾಗ ಜಲ ಗಮದ ಾರkಾಣಪlರ ಬಲದಂmೆ $ಾಲುhೆ ಾಗ ಸಂ.5 +ೋಡಲಬಂಡ ಇವ+ೊಂ#ೆ /ಾ $ೊಳn:ಾPದುo, ಉ:ೆ;ೕಖ (2) ರನRಯ $ಾಮ#ಾ"ಯನುL 'ಾDರಂ ಸ:ಾPತುK. $ಾಮ#ಾ"ಯು ಪDಗMಯ6;ದು ಮು$ಾKಯದ ಹಂತ ತಲುರುತKAೆ.
$ಾಮ#ಾ"ಯ ಪDಗMಯ ಅನು?ಾರhಾP ಆY.ಎ. € ಸಂ.7ರವ+ೆ#ೆ ರೂ ರೂ ರೂ ರೂ.875,69,18,422.00 bತKhಾPದುo ಇದರ6; ಇನೂL ರೂ ರೂ ರೂ ರೂ.360,27,04,480.00 ಾp ಾp ಾp ಾp 6;ನ 6;ನ 6;ನ 6;ನ bತK bತK bತK bತK 'ಾವMkಾಗೇ$ಾPರುತKAೆ 'ಾವMkಾಗೇ$ಾPರುತKAೆ 'ಾವMkಾಗೇ$ಾPರುತKAೆ 'ಾವMkಾಗೇ$ಾPರುತKAೆ.
ಇದಲ;Aೆ ವ&Jದ $ಾಮ#ಾ"ಯ ಅಳ7ೆಗಳನುL ತ#ೆದು$ೊಂಡು ಲ;ನುL ತkಾ"ಸುವlದು ಕೂಡ ಾp ಇರುತKAೆ.
25 ಉ:ೆ;ೕಖ (3) ಮತುK (4) ರನRಯ ಾp ಲು;ಗಳನುL 'ಾವM/ಾಡಲು $ಾಯ&hಾ&ಹಕ ಇಂcೕಯರರು, ಕೃiಾj ಾಗ d® ಗಮ ¤AiÀÄ{ತ ಾ.ಬ.ದಂ.$ಾಲುhೆ ಾಗ ಸಂ.5 +ೋಡಲಬಂmಾ ಇವ"#ೆ $ೋರ:ಾPತುK. ಆದ+ೆ ಸದ"ರವರು kಾವlzÉÃ ಕDಮವನುL ಜರುPರುವlಲ;.
ಈ#ಾಗ:ೇ $ಾಮ#ಾ" c6;ನ ಪD/ಾಣಗಳI Qೇ 95% ಪ_ಣ&#ೊಂ ದುo, ಇನೂL Qೇ 5% /ಾತD ಪD/ಾಣಗಳI $ಾಮ#ಾ" ಾp ಇರುತKAೆ. ಒಡಂಬ $ೆಯ Schedule-B ಪD$ಾರ Bill of quantities [ೆqಾrPರುವlಲ;. ಸ$ಾಲ$ೆO ಲು; 'ಾವMkಾಗAೆ $ಾರಣ Qೇ 5% $ಾಮ#ಾ"ಯ /ಾತD ಾp ಉfAೆ.
PÁªÀÄUÁjAiÀÄ Dgï.J ಲು;ಗಳನುL ಕ+ಾರು ಒಪgಂದದ $ಾ;d-7 ಪD$ಾರ ಲು;ಗಳನುL ಒg$ೊಳn:ಾPರುತKAೆ. ಇಂತಹ ಸಂಧಬ&ದ6; ಾp ಇರುವ ಲು;ಗಳನುL ತmೆJ ದು $ಾಮ#ಾ"ಯನುL ಮು$ಾKಯ#ೊfಸುವlದ$ೆO ಆt&ಕ ಅಡಚvೆಯುಂwಾದ ಸಂಧಬ&ದ6;, ಾನು ಕ+ಾರು ಒಪgಂದ Additional conditions of contract clause No.29gÀ£ÀéAiÀÄ ಗಮದ $ಾಯ&hಾ&ಹಕ ಇಂcಯರರು, ಸ[ಾಯಕ $ಾಯ&hಾ&ಹಕ ಇಂcಯರರು ಮತುK Qಾಾ=$ಾ"ಗಳI ಇವರ ಸೂಕK ಪ"ೕ>vೆಯ6; (ಸೂಪರhೈಜW) ಅ ಯ6; ಅನುbೕತ drawings and specifications ಮತುK ಸದ"ಯವರ $ಾಲ$ಾಲ$ೆO ೕಡುವ /ಾಗ&ದಶ&ನAೊಂ#ೆ, $ಾಮ#ಾ"ಯನುL ವ&Jಸ:ಾPರುತKAೆ.
ತರvಾ $ಾಲುವ ಸಂೆ 1 "ಂದ 14ರವ+ೆ#ೆ [ಾಗೂ ಇದರ ಅ ಯ6; ಬರುವ ಉಪತರಣ PÁ®ÄªÉ ªÀÄvÀÄÛ ¯ÁålgÀ¯ïUÀ¼À PÁªÀÄUÁj ¤ªÀð»¸À®Ä Working L Section, Cross Section reach wise hydraulic particularನುL $ಾಯ&hಾ&ಹಕ ಇಂcೕಯರರು ಕೃ.ಾ.ಜ.. ಾಗ ಸಂ.5 +ೋಡಲಬಂmಾ ಅನುbೕ $ಾಮ#ಾ"ಯನುL ವ&Jಸಲು ೕ ದಂ7ೆ ಈ $ಾಮ#ಾ"ಯನುL ¤ªÀð»¸À¯ÁVgÀÄvÀÛzÉ.
ತರvಾ $ಾಲುhೆ ಸಂೆ 15 [ಾಗೂ ಇದರ ಅ ಯ6; ಬರುವ ಉಪತರಣ $ಾಲುhೆ ಮತುK ¯ÁålgÀ¯ïUÀ¼À (Working L Section), (Cross Section) reach wise hydraulic particulars£ÀÄß ಅನುbೕದ $ಾಯ&hಾ&ಹಕ ಇಂcೕಯರರು ಕೃ.ಾ.ಜ.. ಾಗ ಸಂ.6 ZಕO[ೊನLಕು\ ಅನುbೕ $ಾಮ#ಾ"ಯನುL ವ&Jಸಲು ೕ ದಂ7ೆ ಈ $ಾಮ#ಾ"ಯನುL ವ&Jಸ:ಾPರುತKAೆ.
ಇದಲ;Aೆ $ಾಮ#ಾ"ಯ ಪDಗM ಸಂಧಬ&ದ6; ಕ+ಾರು ಒಪgಂದದ Additional conditions of contract clause No.39 ರನRಯ ಕೃಷj ಾಗ ಜಲ ಮಗದ QC Authorities ಅವರ ಪ"ೕ>vೆ [ಾಗೂ ಗುಣ ಮಟaದ ಬ#ೆy ಪD/ಾಣ ಪತDಗಳನುL ಪmೆಯುವlದಲ;Aೆ
26 ಗಮದ ವMzಂದ ೇಮಕ#ೊಂಡ ಮೂರೇ ತಂಡದ ವMzಂದಸಹ $ಾಮ#ಾ"ಯ ಗುಣ ಮಟaದ ಬ#ೆy ವ"ದಯನುL ಪmೆದು$ೊಂ ರುತKAೆ.
ನಮ#ೆ ನಮ#ೆ ನಮ#ೆ ನಮ#ೆ ಆt&ಕ ಆt&ಕ ಆt&ಕ ಆt&ಕ ಅಡಚvೆ ಅಡಚvೆ ಅಡಚvೆ ಅಡಚvೆ ಉಂwಾPರುವlದ"ಂದ ಉಂwಾPರುವlದ"ಂದ ಉಂwಾPರುವlದ"ಂದ ಉಂwಾPರುವlದ"ಂದ /ಾನಕ /ಾನಕ /ಾನಕ /ಾನಕ ಒತKಡ$ೆO ಒತKಡ$ೆO ಒತKಡ$ೆO ಒತKಡ$ೆO ಒಳಪಟುa ಒಳಪಟುa ಒಳಪಟುa ಒಳಪಟುa ಆ+ೋಗದ6; ಆ+ೋಗದ6; ಆ+ೋಗದ6; ಆ+ೋಗದ6; ಏರು'ೇ+ಾP ಏರು'ೇ+ಾP ಏರು'ೇ+ಾP ಏರು'ೇ+ಾP ಹೃದ+ೋಗಂದ ಹೃದ+ೋಗಂದ ಹೃದ+ೋಗಂದ ಹೃದ+ೋಗಂದ ಬಳಲುMKAೆoೕೆ ಬಳಲುMKAೆoೕೆ ಬಳಲುMKAೆoೕೆ ಬಳಲುMKAೆoೕೆ. ನಮ#ೆ ನಮ#ೆ ನಮ#ೆ ನಮ#ೆ $ಾ{&ಕರ $ಾ{&ಕರ $ಾ{&ಕರ $ಾ{&ಕರ hೇತನ hೇತನ hೇತನ hೇತನ, Eೕ|ನ"ಗಳ Eೕ|ನ"ಗಳ Eೕ|ನ"ಗಳ Eೕ|ನ"ಗಳ ವ&ಹvಾ ವ&ಹvಾ ವ&ಹvಾ ವ&ಹvಾ 'ಾವMಗಳI 'ಾವMಗಳI 'ಾವMಗಳI 'ಾವMಗಳI ಮತುK ಮತುK ಮತುK ಮತುK ಾಂpನ6; ಾಂpನ6; ಾಂpನ6; ಾಂpನ6; ಪmೆರುವ ಪmೆರುವ ಪmೆರುವ ಪmೆರುವ ?ಾಲ ?ಾಲ ?ಾಲ ?ಾಲ ಮತುK ಮತುK ಮತುK ಮತುK ಅದರ ಅದರ ಅದರ ಅದರ ಬ } ಬ } ಬ } ಬ } ಇ7ಾಗಳI ಇ7ಾಗಳI ಇ7ಾಗಳI ಇ7ಾಗಳI ಎಲ;ವl ಎಲ;ವl ಎಲ;ವl ಎಲ;ವl ಕೂ $ೊಂಡು ಕೂ $ೊಂಡು ಕೂ $ೊಂಡು ಕೂ $ೊಂಡು ನನL ನನL ನನL ನನL Eೕ:ೆ Eೕ:ೆ Eೕ:ೆ Eೕ:ೆ ಆt&ಕ ಆt&ಕ ಆt&ಕ ಆt&ಕ [ೊ [ೊ [ೊ [ೊ+ೆ+ೆ+ೆ+ೆ [ೆqಾrPರುತKAೆ [ೆqಾrPರುತKAೆ [ೆqಾrPರುತKAೆ [ೆqಾrPರುತKAೆ. ಇದ"ಂದ ಇದ"ಂದ ಇದ"ಂದ ಇದ"ಂದ ಮುಂನ ಮುಂನ ಮುಂನ ಮುಂನ kಾವlAೇ kಾವlAೇ kಾವlAೇ kಾವlAೇ $ಾಮ#ಾ"ಯನುL $ಾಮ#ಾ"ಯನುL $ಾಮ#ಾ"ಯನುL $ಾಮ#ಾ"ಯನುL ವ&Jಸಲು ವ&Jಸಲು ವ&Jಸಲು ವ&Jಸಲು ಸಹ ಸಹ ಸಹ ಸಹ ಆಗುMKಲ; ಆಗುMKಲ; ಆಗುMKಲ; ಆಗುMKಲ;. ಈ ಎ:ಾ; ಎ:ಾ; ಎ:ಾ; ಎ:ಾ; ಅಂಶಗfಂದ ಅಂಶಗfಂದ ಅಂಶಗfಂದ ಅಂಶಗfಂದ ನನL ನನL ನನL ನನL ಆ+ೋಗವl ಆ+ೋಗವl ಆ+ೋಗವl ಆ+ೋಗವl ಇನಷುa ಇನಷುa ಇನಷುa ಇನಷುa ~ೕ\ಸುMKAೆ ~ೕ\ಸುMKAೆ ~ೕ\ಸುMKAೆ ~ೕ\ಸುMKAೆ. ಆದುದo"ಂದ ಆದುದo"ಂದ ಆದುದo"ಂದ ಆದುದo"ಂದ ಅ=$ಾ"ಗಳ ಅ=$ಾ"ಗಳ ಅ=$ಾ"ಗಳ ಅ=$ಾ"ಗಳ ಸಮುNಖದ6; ಸಮುNಖದ6; ಸಮುNಖದ6; ಸಮುNಖದ6; ಾನು ಾನು ಾನು ಾನು ವ&Jದ ವ&Jದ ವ&Jದ ವ&Jದ ಗುಣಮಟaದ ಗುಣಮಟaದ ಗುಣಮಟaದ ಗುಣಮಟaದ $ಾಮ#ಾ"ಯ $ಾಮ#ಾ"ಯ $ಾಮ#ಾ"ಯ $ಾಮ#ಾ"ಯ ಪ"/ಾಣಗಳ ಪ"/ಾಣಗಳ ಪ"/ಾಣಗಳ ಪ"/ಾಣಗಳ ಅನು?ಾರhಾP ಅನು?ಾರhಾP ಅನು?ಾರhಾP ಅನು?ಾರhಾP ಾp ಾp ಾp ಾp ಇರುವ ಇರುವ ಇರುವ ಇರುವ ರೂ ರೂ ರೂ ರೂ.360,27,04,480.00 ಲು; ಲು; ಲು; ಲು;ಗಳ ಗಳ ಗಳ ಗಳ 'ಾವM#ೆ 'ಾವM#ೆ 'ಾವM#ೆ 'ಾವM#ೆ ಕDಮ ಕDಮ ಕDಮ ಕDಮ ಜರುPಸಲು ಜರುPಸಲು ಜರುPಸಲು ಜರುPಸಲು $ಾಯ&hಾ&ಹಕ $ಾಯ&hಾ&ಹಕ $ಾಯ&hಾ&ಹಕ $ಾಯ&hಾ&ಹಕ ಇಂcಯರವ"#ೆ ಇಂcಯರವ"#ೆ ಇಂcಯರವ"#ೆ ಇಂcಯರವ"#ೆ ಸೂಕK ಸೂಕK ಸೂಕK ಸೂಕK Aೇ&ಶನ Aೇ&ಶನ Aೇ&ಶನ Aೇ&ಶನ ೕಡಲು ೕಡಲು ೕಡಲು ೕಡಲು ಈ ಮೂಲಕ ಮೂಲಕ ಮೂಲಕ ಮೂಲಕ ತಮN6; ತಮN6; ತಮN6; ತಮN6; ಕಳಕfzಂದ ಕಳಕfzಂದ ಕಳಕfzಂದ ಕಳಕfzಂದ $ೈ $ೈ $ೈ $ೈ ಮುPದು ಮುPದು ಮುPದು ಮುPದು ನಂMಸು7ೆKೕೆ ನಂMಸು7ೆKೕೆ ನಂMಸು7ೆKೕೆ ನಂMಸು7ೆKೕೆ.
ಸJ/- E|| ಎW. .ವಡ}Y & ಕಂ.”
The bills are not cleared, but a Committee was appointed to look into the work completion certificate so issued, on 10-06-2022. The order appointing the Committee was later withdrawn. Therefore, reference made to the said Committee is necessary to be noticed.
Complaints were registered before the Lokayukta and before the Estimates Committee of the Karnataka Legislature. In no proceedings, the petitioner’s work has been found fault with, is the admitted position. With this admitted position, it becomes
27 necessary to consider whether, there could be a direction issued to the respondents to pay the bills as was undertaken.
Statement of objections is filed by the respondents. Certain paragraphs of the statement of objections would become necessary to be noticed. They read as follows:
“7. It is submitted that, in respect of package-I the petitioner submitted total Bills amounting to Rs.867.66 Crores, out of which the Nigam has made payment of Rs.590.10 Crores till date. The total payments made works out to 68% as against the bills submitted.
Further in respect of package-II the petitioner submitted total Bills amounting to Rs.636.58 crores, out of which the Nigam has made payment of Rs.377.71 Crores till date. The total payments made works out to 59.33% as against the bills submitted.
The Details of bills submitted and paid is given below:
(Amount in crores)
Package Agreement Cost including GST Bill submitted Bill paid Pending Bill Amount Package-I 977.51 867.66 590.10
56 Package-II 909.23 636.58 377.71
87 Total 1886.74 1504.24 967.81
43
It maybe pertinent to note that the petitioner has achieved physical progress of 79.30% & 59.14% in package-I & package-2 respectively. The respondent- 2, in the interest of expediting the work, has paid 68.00% and 59.33% in package-1 & package-2 respectively the submitted bills.
28
It is submitted that, however, inspite of the above positive approach by the respondent No.2, the petitioner has failed to comply to the Chief Engineers inspection notes dated 17-10-2023, 19-10-2023 & 13.01.2024. The petitioner has also failed to submit all the relevant appropriate quality certificate test results for the executed/rectified works for the works recorded in RA Bills 4, 5, 6 & 7th as committed by the petitioner himself. Due to the reasons stated in the above paragraphs the Respondent No.2 has kept the bills pending for payment. Further, in the other projects/works which are undertaken up by the petitioner with Respondent No.2, payments are being made as per the progress achieved by the petitioner and it is nowhere stopped/affected due to enquiry of PKG-1 & PKG-2. Even on 18-04-2024 the Respondent- No.2 has paid Rs.61.59 crores for other works which are executed by the petitioner. As on 19-04-2024, there are no pending bills of the petitioner for any other works (other than the NRBC ERM works) with Respondent No.2.”
Even according to the 2nd respondent, an amount of ₹536 crores or even more is pending to be paid. What the respondent would contend is that entire enquiry proceedings have been handed over to the committee headed by Justice H.N. Nagamohan Das who on actively pursuing the inquiry, sought various details and has also conducted site visits on various dates. Therefore, everything, according to the 2nd respondent, hinges upon the findings of the Committee of Justice H.N. Nagamohan Das.
29
The findings of the committee of Justice H.N. Nagamohan Das is placed before this Court in a sealed cover. A perusal at the findings of the Committee would clearly indicate that there is nothing blameworthy found against the petitioner. Therefore, there is no warrant for withholding of any amount by the Corporation to the petitioner. The amount has been withheld for long now and a direction is necessary to be issued for release of entire amount in terms of bills so submitted upon issuance of work completion certificates by the officers of the Corporation.
Generally, for recovery of amounts in the bills or otherwise, a writ petition would not be entertainable, if it was not by a State as a contracting party. The Apex Court has, in plethora of judgments, considered this issue as to whether a writ would be maintainable for recovery of money.
The Apex Court in the case of ABL INTERNATIONAL LIMITED v. EXPORT CREDIT GUARANTEE CORPORATION OF INDIA LIMITED1 has held as follows:
1 (2004) 3 SCC 553
30 “….
….
….
In our opinion this question is no more res integra and is settled by a large number of judicial pronouncements of this Court. In K.N. Guruswamy v. State of Mysore [AIR 1954 SC 592: (1955) 1 SCR 305] this Court held: (AIR pp. 595-96, para 20)
“20. The next question is whether the appellant can complain of this by way of a writ. In our opinion, he could have done so in an ordinary case. The appellant is interested in these contracts and has a right under the laws of the State to receive the same treatment and be given the same chance as anybody else. …
We would therefore in the ordinary course have given the appellant the writ he seeks. But, owing to the time which this matter has taken to reach us (a consequence for which the appellant is in no way to blame, for he has done all he could to have an early hearing), there is barely a fortnight of the contract left to go. … A writ would therefore be ineffective and as it is not our practice to issue meaningless writs we must dismiss this appeal and leave the appellant content with an enunciation of the law.”
It is clear from the above observations of this Court in the said case, though a writ was not issued on the facts of that case, this Court has held that on a given set of facts if a State acts in an arbitrary manner even in a matter of contract, an aggrieved party can approach the court by way of writ under Article 226 of the Constitution and the court depending on facts of the said case is empowered to grant the relief. This judgment in K.N. Guruswamy v. State of Mysore [AIR 1954 SC 592: (1955) 1 SCR 305] was followed subsequently by this Court in the case of D.F.O. v. Ram Sanehi Singh [(1971) 3 SCC 864] wherein this Court held: (SCC p. 865, para 4)
“By that order he has deprived the respondent of a valuable right. We are unable to hold that merely because the source of the right which the respondent claims was initially in a contract, for obtaining relief against any arbitrary and unlawful action on the part of a public authority he must resort to a suit and not to a
31 petition by way of a writ. In view of the judgment of this Court in K.N. Guruswamy case [AIR 1954 SC 592: (1955) 1 SCR 305] there can be no doubt that the petition was maintainable, even if the right to relief arose out of an alleged breach of contract, where the action challenged was of a public authority invested with statutory power.” (emphasis supplied)
In the case of Gujarat State Financial Corpn. v. Lotus Hotels (P) Ltd. [(1983) 3 SCC 379] this Court following an earlier judgment in Ramana Dayaram Shetty v. International Airport Authority of India [(1979) 3 SCC 489] held: (SCC pp. 385-86, paras 9 & 11)
The instrumentality of the State which would be ‘other authority’ under Article 12 cannot commit breach of a solemn undertaking to the prejudice of the other party which acted on that undertaking or promise and put itself in a disadvantageous position. The appellant Corporation, created under the State Financial Corporations Act, falls within the expression of ‘other authority’ in Article 12 and if it backs out from such a promise, it cannot be said that the only remedy for the aggrieved party would be suing for damages for breach and that it could not compel the Corporation for specific performance of the contract under Article 226. 12. The learned counsel appearing for the first respondent, however, submitted that this Court has taken a different view in the case of LIC of India v. Escorts Ltd. [(1986) 1 SCC 264] wherein this Court held: (SCC p. 344, para 102)
“If the action of the State is related to contractual obligations or obligations arising out of the tort, the court may not ordinarily examine it unless the action has some public law character attached to it. Broadly speaking, the court will examine actions of State if they pertain to the public law domain and refrain from examining them if they pertain to the private law field. The difficulty will lie in demarcating the frontier between the public law domain and the private law field. It is impossible to draw the line with precision and we do not want to attempt it. The question must be decided in
32 each case with reference to the particular action, the activity in which the State or the instrumentality of the State is engaged when performing the action, the public law or private law character of the action and a host of other relevant circumstances. When the State or an instrumentality of the State ventures into the corporate world and purchases the shares of a company, it assumes to itself the ordinary role of a shareholder, and dons the robes of a shareholder, with all the rights available to such a shareholder. There is no reason why the State as a shareholder should be expected to state its reasons when it seeks to change the management, by a resolution of the company, like any other shareholder.” (emphasis supplied)
We do not think this Court in the above case has, in any manner, departed from the view expressed in the earlier judgments in the case cited hereinabove. This Court in the case of LIC of India [(1986) 1 SCC 264] proceeded on the facts of that case and held that a relief by way of a writ petition may not ordinarily be an appropriate remedy. This judgment does not lay down that as a rule in matters of contract the court's juri iction under Article 226 of the Constitution is ousted. On the contrary, the use of the words “court may not ordinarily examine it unless the action has some public law character attached to it” itself indicates that in a given case, on the existence of the required factual matrix a remedy under Article 226 of the Constitution will be available. The learned counsel then relied on another judgment of this Court in the case of State of U.P. v. Bridge & Roof Co. (India) Ltd. [(1996) 6 SCC 22] wherein this Court held: (SCC p. 31, para 21)
Further, the contract in question contains a clause providing inter alia for settlement of disputes by reference to arbitration. The arbitrators can decide both questions of fact as well as questions of law. When the contract itself provides for a mode of settlement of disputes arising from the contract, there is no reason why the parties should not follow and adopt that remedy and invoke the extraordinary juri iction of the High Court under Article 226. The existence of an effective alternative remedy — in this case, provided in the contract itself — is a good ground for the
33 court to decline to exercise its extraordinary juri iction under Article 226. 14. This judgment again, in our opinion, does not help the first respondent in the argument advanced on its behalf that in contractual matters remedy under Article 226 of the Constitution does not lie. It is seen from the above extract that in that case because of an arbitration clause in the contract, the Court refused to invoke the remedy under Article 226 of the Constitution. We have specifically inquired from the parties to the present appeal before us and we have been told that there is no such arbitration clause in the contract in question. It is well known that if the parties to a dispute had agreed to settle their dispute by arbitration and if there is an agreement in that regard, the courts will not permit recourse to any other remedy without invoking the remedy by way of arbitration, unless of course both the parties to the dispute agree on another mode of dispute resolution. Since that is not the case in the instant appeal, the observations of this Court in the said case of Bridge & Roof Co. [(1996) 6 SCC 22] are of no assistance to the first respondent in its contention that in contractual matters, writ petition is not maintainable.
The learned counsel then contending that this Court will not entertain a writ petition involving disputed questions of fact relied on a judgment of this Court in the case of State of Bihar v. Jain Plastics and Chemicals Ltd. [(2002) 1 SCC 216] wherein this Court held: (SCC p. 218, para 7)
“7. In our view, it is apparent that the order passed by the High Court is, on the face of it, illegal and erroneous. It is true that many matters could be decided after referring to the contentions raised in the affidavits and counter-affidavits, but that would hardly be a ground for exercise of extraordinary juri iction under Article 226 of the Constitution in case of alleged breach of contract. Whether the alleged non-supply of road permits by the appellants would justify breach of contract by the respondent would depend upon facts and evidence and is not required to be decided or dealt with in a writ petition. Such seriously disputed questions or rival claims of the parties with regard to breach of
34 contract are to be investigated and determined on the basis of evidence which may be led by the parties in a properly instituted civil suit rather than by a court exercising prerogative of issuing writs.”
A perusal of this judgment though shows that a writ petition involving serious disputed questions of facts which requires consideration of evidence which is not on record, will not normally be entertained by a court in the exercise of its juri iction under Article 226 of the Constitution of India. This decision again, in our opinion, does not lay down an absolute rule that in all cases involving disputed questions of fact the parties should be relegated to a civil suit. In this view of ours, we are supported by a judgment of this Court in the case of Gunwant Kaur v. Municipal Committee, Bhatinda [(1969) 3 SCC 769] where dealing with such a situation of disputed questions of fact in a writ petition this Court held: (SCC p. 774, paras 14- 16)
“14. The High Court observed that they will not determine disputed question of fact in a writ petition. But what facts were in dispute and what were admitted could only be determined after an affidavit-in-reply was filed by the State. The High Court, however, proceeded to dismiss the petition in limine. The High Court is not deprived of its juri iction to entertain a petition under Article 226 merely because in considering the petitioner's right to relief questions of fact may fall to be determined. In a petition under Article 226 the High Court has juri iction to try issues both of fact and law. Exercise of the juri iction is, it is true, discretionary, but the discretion must be exercised on sound judicial principles. When the petition raises questions of fact of a complex nature, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute may not appropriately be tried in a writ petition, the High Court may decline to try a petition. Rejection of a petition in limine will normally be justified, where the High Court is of the view that the petition is frivolous or because of the nature of the claim made dispute sought to be agitated, or that the petition against the party against whom relief is claimed is not maintainable or that the dispute raised thereby is such that it would be
35 inappropriate to try it in the writ juri iction, or for analogous reasons.
From the averments made in the petition filed by the appellants it is clear that in proof of a large number of allegations the appellants relied upon documentary evidence and the only matter in respect of which conflict of facts may possibly arise related to the due publication of the notification under Section 4 by the Collector.
In the present case, in our judgment, the High Court was not justified in dismissing the petition on the ground that it will not determine disputed question of fact. The High Court has juri iction to determine questions of fact, even if they are in dispute and the present, in our judgment, is a case in which in the interests of both the parties the High Court should have entertained the petition and called for an affidavit-in- reply from the respondents, and should have proceeded to try the petition instead of relegating the appellants to a separate suit.”
The above judgment of Gunwant Kaur [(1969) 3 SCC 769] finds support from another judgment of this Court in the case of Century Spg. and Mfg. Co. Ltd. v. Ulhasnagar Municipal Council [(1970) 1 SCC 582] wherein this Court held: (SCC p. 587, para 13)
“Merely because a question of fact is raised, the High Court will not be justified in requiring the party to seek relief by the somewhat lengthy, dilatory and expensive process by a civil suit against a public body. The questions of fact raised by the petition in this case are elementary.”
This observation of the Court was made while negating a contention advanced on behalf of the respondent Municipality which contended that the petition filed by the appellant Company therein apparently raised questions of fact which argument of the Municipality was accepted by the High Court holding that such disputed questions of fact cannot be tried in the exercise of the extraordinary juri iction under Article 226 of the Constitution. But this Court held otherwise.
36
Therefore, it is clear from the above enunciation of law that merely because one of the parties to the litigation raises a dispute in regard to the facts of the case, the court entertaining such petition under Article 226 of the Constitution is not always bound to relegate the parties to a suit. In the above case of Gunwant Kaur [(1969) 3 SCC 769] this Court even went to the extent of holding that in a writ petition, if the facts require, even oral evidence can be taken. This clearly shows that in an appropriate case, the writ court has the juri iction to entertain a writ petition involving disputed questions of fact and there is no absolute bar for entertaining a writ petition even if the same arises out of a contractual obligation and/or involves some disputed questions of fact.
The learned counsel for the respondent then placed reliance on a judgment of this Court in the case of VST Industries Ltd. v. Workers' Union [(2001) 1 SCC 298 : 2001 SCC (L&S) 227] . In the said case, this Court held: (SCC p. 306, para 8)
“In Andi Mukta case [Andi Mukta Sadguru Shree MuktajeeVandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani, (1989) 2 SCC 691] this Court examined the various aspects and the distinction between an authority and a person and after analysis of the decisions referred in that regard came to the conclusion that it is only in the circumstances when the authority or the person performs a public function or discharges a public duty that Article 226 of the Constitution can be invoked. In the present case, the appellant is engaged in the manufacture and sale of cigarettes. Manufacture and sale of cigarettes will not involve any public function.”
Placing reliance on the observations of this Court in the said case, the learned counsel contended, unless the action challenged in the writ petition pertains to the discharge of a public function or public duty by an authority, the courts will not entertain a writ petition which does not involve the performance of the said public function or public duty. Learned counsel argued in the instant case while
37 repudiating the contract, the first respondent was not discharging any public function or public duty.
We do not think the above judgment in VST Industries Ltd. [(2001) 1 SCC 298: 2001 SCC (L&S) 227] supports the argument of the learned counsel on the question of maintainability of the present writ petition. It is to be noted that VST Industries Ltd. [(2001) 1 SCC 298: 2001 SCC (L&S) 227] against whom the writ petition was filed was not a State or an instrumentality of a State as contemplated under Article 12 of the Constitution, hence, in the normal course, no writ could have been issued against the said industry. But it was the contention of the writ petitioner in that case that the said industry was obligated under the statute concerned to perform certain public functions; failure to do so would give rise to a complaint under Article 226 against a private body. While considering such argument, this Court held that when an authority has to perform a public function or a public duty, if there is a failure a writ petition under Article 226 of the Constitution is maintainable. In the instant case, as to the fact that the respondent is an instrumentality of a State, there is no dispute but the question is: was the first respondent discharging a public duty or a public function while repudiating the claim of the appellants arising out of a contract? Answer to this question, in our opinion, is found in the judgment of this Court in the case of Kumari ShrilekhaVidyarthi v. State of U.P. [(1991) 1 SCC 212: 1991 SCC (L&S) 742] wherein this Court held: (SCC pp. 236-37, paras 22 & 24)
“The impact of every State action is also on public interest. … It is really the nature of its personality as State which is significant and must characterize all its actions, in whatever field, and not the nature of function, contractual or otherwise, which is decisive of the nature of scrutiny permitted for examining the validity of its act. The requirement of Article 14 being the duty to act fairly, justly and reasonably, there is nothing which militates against the concept of requiring the State always to so act, even in contractual matters.”
38
It is clear from the above observations of this Court, once the State or an instrumentality of the State is a party of the contract, it has an obligation in law to act fairly, justly and reasonably which is the requirement of Article 14 of the Constitution of India. Therefore, if by the impugned repudiation of the claim of the appellants the first respondent as an instrumentality of the State has acted in contravention of the abovesaid requirement of Article 14, then we have no hesitation in holding that a writ court can issue suitable directions to set right the arbitrary actions of the first respondent. In this context, we may note that though the first respondent is a company registered under the Companies Act, it is wholly owned by the Government of India. The total subscribed share capital of this Company is 2,50,000 shares out of which 2,49,998 shares are held by the President of India while one share each is held by the Joint Secretary, Ministry of Commerce and Industry and Officer on Special Duty, Ministry of Commerce and Industry respectively. The objects enumerated in the memorandum of association of the first respondent at para 10 read:
“To undertake such functions as may be entrusted to it by the Government from time to time, including grant of credits and guarantees in foreign currency for the purpose of facilitating the import of raw materials and semi-finished goods for manufacture or processing goods for export.”
Para 11 of the said object reads thus:
“To act as agent of the Government, or with the sanction of the Government on its own account, to give the guarantees, undertake such responsibilities and discharge such functions as are considered by the Government as necessary in national interest.”
It is clear from the above two objects of the Company that apart from the fact that the Company is wholly a Government-owned company, it discharges the functions of the Government and acts as an agent of the Government even when it gives guarantees and it has a
39 responsibility to discharge such functions in the national interest. In this background it will be futile to contend that the actions of the first respondent impugned in the writ petition do not have a touch of public function or discharge of a public duty. Therefore, this argument of the first respondent must also fail.
The learned counsel for the respondent then contended that though the principal prayer in the writ petition is for quashing the letters of repudiation by the first respondent, in fact the writ petition is one for a “money claim” which cannot be granted in a writ petition under Article 226 of the Constitution of India. In our opinion, this argument of the learned counsel also cannot be accepted in its absolute terms. This Court in the case of U.P. Pollution Control Board v. Kanoria Industrial Ltd. [(2001) 2 SCC 549] while dealing with the question of refund of money in a writ petition after discussing the earlier case-law on this subject held: (SCC pp. 556-58, paras 12 & 16-17)
“12. In the para extracted above, in a similar situation as arising in the present cases relating to the very question of refund, while answering the said question affirmatively, this Court pointed out that the courts have made distinction between those cases where a claimant approached a High Court seeking relief of obtaining refund only and those where refund was sought as a consequential relief after striking down of the order of assessment etc. In these cases also the claims made for refund in the writ petitions were consequent upon declaration of law made by this Court. Hence, the High Court committed no error in entertaining the writ petitions. ***
In support of the submission that a writ petition seeking mandamus for mere refund of money was not maintainable, the decision in Suganmal v. State of M.P. [AIR 1965 SC 1740] was cited. In AIR para 6 of the said judgment, it is stated that ‘we are of the opinion that though the High Courts have power to pass any appropriate order in the exercise of the powers conferred under Article 226 of the Constitution, such a petition solely praying for
40 the issue of a writ of mandamus directing the State to refund the money is not ordinarily maintainable for the simple reason that a claim for such a refund can always be made in a suit against the authority which had illegally collected the money as a tax’.
Again in AIR para 9, the Court held:
‘We, therefore, hold that normally petitions solely praying for the refund of money against the State by a writ of mandamus are not to be entertained. The aggrieved party has the right of going to the civil court for claiming the amount and it is open to the State to raise all possible defences to the claim, defences which cannot, in most cases, be appropriately raised and considered in the exercise of writ juri iction.’
This judgment cannot be read as laying down the law that no writ petition at all can be entertained where claim is made for only refund of money consequent upon declaration of law that levy and collection of tax/cess is unconstitutional or without the authority of law. It is one thing to say that the High Court has no power under Article 226 of the Constitution to issue a writ of mandamus for making refund of the money illegally collected. It is yet another thing to say that such power can be exercised sparingly depending on facts and circumstances of each case. For instance, in the cases on hand where facts are not in dispute, collection of money as cess was itself without the authority of law; no case of undue enrichment was made out and the amount of cess was paid under protest; the writ petitions were filed within a reasonable time from the date of the declaration that the law under which tax/cess was collected was unconstitutional. There is no good reason to deny a relief of refund to the citizens in such cases on the principles of public interest and equity in the light of the cases cited above. However, it must not be understood that in all cases where collection of cess, levy or tax is held to be unconstitutional or invalid, the refund should necessarily follow. We wish to add that even in cases where collection of cess, levy or tax is held to be unconstitutional or invalid, refund is not an automatic consequence but may be refused on several grounds depending on facts and circumstances of a given case.”
41
Therefore, this objection must also fail because in a given case it is open to the writ court to give such monetary relief also.
From the above discussion of ours, the following legal principles emerge as to the maintainability of a writ petition:
(a) In an appropriate case, a writ petition as against a State or an instrumentality of a State arising out of a contractual obligation is maintainable.
(b) Merely because some disputed questions of fact arise for consideration, same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule.
(c) A writ petition involving a consequential relief of monetary claim is also maintainable.
However, while entertaining an objection as to the maintainability of a writ petition under Article 226 of the Constitution of India, the court should bear in mind the fact that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provisions of the Constitution. The High Court having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. The Court has imposed upon itself certain restrictions in the exercise of this power. (See Whirlpool Corpn. v. Registrar of Trade Marks [(1998) 8 SCC 1].) And this plenary right of the High Court to issue a prerogative writ will not normally be exercised by the Court to the exclusion of other available remedies unless such action of the State or its instrumentality is arbitrary and unreasonable so as to violate the constitutional mandate of Article 14 or for other valid and legitimate reasons, for which the Court thinks it necessary to exercise the said juri iction.” (Emphasis supplied)
42 The Apex Court holds that in an appropriate case, a writ petition against the State or its instrumentality arising out of a contractual obligation is maintainable; a writ petition involving a consequential relief of monetary claim is also maintainable.
There is no dispute with regard to the amount involved in the case at hand. There is no dispute with regard to quantification of the amount. In terms of bills submitted by the petitioner, the petitioner is entitled to receive the amount that is stipulated in the bills. The 2nd respondent’s not adhering to either the interim order or release of bills on specious pleas has led the fate of the petitioner to jeopardy. In the light of the judgment of the Apex Court supra and the fact that no Inquiry Committee has found the petitioner at fault at any point in time, non-release of funds cannot be countenanced. In that light, the petition deserves to succeed with the prayer that is sought for, not in its entirety, but insofar as bills of the petitioner.
The petitioner challenges the Government Order of constitution of the committee headed by Justice H.N. Nagamohan
43 Das. The Committee is not constituted only to look into the veracity of claims of the petitioner but several persons. Therefore, since the Committee has not found anything that is blameworthy against the petitioner, quashing of Government Order cannot be the relief that can be granted to the petitioner. Therefore, what the petitioner becomes entitled to is a mandamus for release of funds as per bills that are submitted by the petitioner.
For the aforesaid reasons, the following:
O R D E R
(i) Writ Petition is allowed in part. (ii) Mandamus issues to the respondents to release the amount that is claimed by the petitioner through the bills so submitted, within an outer limit of four weeks from the date of receipt of a copy of this order.
Consequently, I.A.No.1 of 2024 also stands disposed. (M.NAGAPRASANNA) JUDGE
Bkp CT:SS
Reproduced from the public record of the Karnataka High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.