M/S Vijayalakshmi Enterprises vs. Karnataka Power Transmission Corporation Limited (Kptcl)
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Cause title — parties, addresses and appearances
ORDER
The petitioner is before this Court calling in question Official Memorandum dated 23-12-2022 by which the contract that was entered into with the petitioner by the 1st respondent/ Karnataka
3 Power Transmission Corporation Limited (‘the Corporation’ for short) is terminated, bank guarantee furnished by the petitioner is revoked and the petitioner is blacklisted from participation in any tender floated by the Corporation and all other ESCOMS for a period of three years.
Heard Sri Udaya Holla, learned senior counsel appearing for the petitioner and Sri S.Sriranga, learned senior counsel appearing for the respondents.
Brief facts that lead the petitioner to this Court in the subject writ petition, as borne out from the pleadings, are as follows:-
The 1st respondent/Corporation issues a notice inviting tender in the year 2021 for the work of construction and laying down transmission lines in Challakere Taluk, Chitradurga District on turnkey basis including supply of matching materials/ equipment for erection and incidental civil works for the purpose of testing and commissioning of transmission lines. Pursuant to Tender Scrutiny Committee analysing documents submitted by tenderers, the
4 petitioner emerges as L1, lowest bidder and is issued a letter of intent from the Corporation on 01-07-2021; after which on 24-09-2021 a detailed work order was issued to the petitioner and a contract was also executed by the parties in the interregnum. In terms of conditions of tender, the petitioner had to complete the work within 12 months from the date of issuance of letter of intent including the monsoon period.
Since the letter of intent was issued on 01-07-2021, the petitioner in terms of the contract had to complete the work on or before 30-06-2022. By 31-03-2022 the petitioner claims to have competed 90% of the foundation work and 78% of erection work and had to supply ACSR Drake Conductor from 28-03-2022 to 15- 06-2022 to string the conductor to the towers. The petitioner did not complete the work. The progress in completion of work from 31-03-2022 to 30-06-2022 fell far short as the deadline had already reached. By then, the Corporation communicates several letters and repeatedly requested the petitioner to complete the work and treat the work as most urgent. The Letters communicated were on 26-05-2022, 7-06-2022, 15-06-2022, 30-06-2022, 1-07-2022 and
5 28-10-2022. The petitioner replies to every one of the letters contending that farmers in the area are agitating as compensation is not completely paid to them by the Corporation for laying down transmission lines in their lands.
Notwithstanding the said replies, on the ground that the petitioner had not completed the works to an extent of 145.8 Kms., a show cause notice was issued to the petitioner seeking to show cause as to why the contract entered with the petitioner by the Corporation should not be terminated and the petitioner should not be blacklisted. The petitioner again did not show any improvement in the works that had to be completed but replied to the Corporation again contending that due to farmers’ agitation the work could not be completed. It is then the Corporation issues Official Memorandum on 23-12-2022 terminating the contract, invoking the bank guarantee and blacklisting the petitioner. It is this Official Memorandum that drives the petitioner to this Court in the subject petition.
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The learned senior counsel Sri Udaya Holla, appearing for the petitioner would contend that the petitioner has performed this kind of contract on thirteen occasions in the past. There has been no complaint of short completion or non-completion of work within the deadline. This is the first project in which the deadline could not be met not for any reason of default on the part of the petitioner, but for the reason that the Corporation did not fulfill disbursement of compensation amount to the farmers in whose lands the transmission lines pass through. The learned senior counsel would seek to contend that the work comprised of three different parts – supply, erection and civil works. In terms of the letter of intent, the compensation had to be paid by the successful tenderer. But, the Corporation on the request of the petitioner chose disbursement of compensation to the farmers by itself. Therefore, if the Corporation had paid compensation to the agitating farmers there could have been no impediment in completion of work within the deadline or long before the dead line. The learned senior counsel would take this Court through the documents appended to the petition and seeks to demonstrate the activity chart setting the timeline for completion of work which should have been executed. He would
7 contend that the show cause notice was not specific that the petitioner would be blacklisted from participating in future tenders. It only directed the petitioner to show cause as to why the contract should not be terminated and the bank guarantee should not be revoked. On the aforesaid grounds, the learned senior counsel would seek quashment of the Official Memorandum and issue of direction to the respondents to pay compensation to the farmers, permit the petitioner to execute the work and complete it within a time frame that would be fixed by this Court or by the Corporation.
On the other hand, the learned senior counsel Sri S. Sriranga, representing the Corporation would vehemently refute the submissions to contend that the petitioner has been wanting to shoot from the shoulder of the farmers and when the deadline was completion of work on or before 30-06-2022 the petitioner had not even purchased the conductors for the purpose of drawing up transmission lines in the lands that were already identified. He would submit that compensation is paid to all those farmers in whose lands the transmission lines are drawn and will be paid to the farmers as and when transmission lines would be drawn.
8 The Corporation fears multiplicity of claims if the compensation is paid in advance and would create a chaotic situation. It is submitted that in every case where transmission lines are drawn compensation is paid in the same manner and not in advance. He would submit that the petitioner has seriously defaulted in completion of work and, therefore, would submit that the petition be dismissed, as the petitioner has miserably failed to execute the contract and in terms of the contract the Corporation is entitled to revoke the Bank guarantee, terminate the contract and blacklist the tenderer. He would further contend that the show cause notice did contain all the details and though the petitioner has replied to those contentions they are not satisfactory.
This Court owing to public interest involved in the project showed indulgence in the case at and passed several orders. On 11-01-2023 this Court passed the following order:
“Heard Sri Udaya Holla, learned senior counsel appearing for the petitioner and Sri S. Sriranga, learned senior counsel appearing for Sri. A. Chandrachood, learned counsel for the respondents.
The matter was listed on 09.01.2023 and was adjourned to 13.01.2023, on an assurance of the learned senior counsel for the respondents, who undertook not to precipitate the matter. The
9 matter is moved today on the ground that the respondents – Karnataka Power Transmission Corporation Limited has precipitated the matter contrary to their assurance.
Sri Udaya Holla, learned senior counsel for the petitioner would submit that the building materials which were on the land are being taken by the respondents – KPTCL; the matter is being precipitated and seeks to produce photographs to that effect.
Therefore, both the parties to maintain status-quo, as on today.
Any action by the respondents – KPTCL contrary to the interim order, would be viewed seriously.
List the matter on 13.01.2023, in the fresh matters list.”
This Court directed maintenance of status quo on the ground that assurance of the learned senior counsel for the Corporation had been breached. On 13-01-2023 this Court passed the following:
“Heard Sri. Udaya Holla, learned Senior counsel appearing for the petitioner and Sri. Sriranga S., learned Senior counsel appearing for the respondent - KPTCL.
The learned Senior counsel appearing for the petitioner would submit that the objections are handed over today and would need two days time to respond to the objections.
The learned Senior counsel appearing for the respondent submits that the inventories be permitted to be taken in the interregnum as it is imperative even for a consideration in the case at hand.
Therefore, the respondent - KTPCL is permitted to take inventories as is needed without disturbing the structure, on
10 as is, where is basis, in the presence of the representative of the petitioner.
List the matter on 17.01.2023 in the fresh matters list.”
On 23-01-2023, the following order came to be passed:
“Heard learned Senior counsel, Sri.Udaya Holla appearing for the petitioner and Sri. S. Sriranga learned Senior counsel representing the respondents.
Learned Senior counsel, Sri. S. Sriranga would submit that petitioners have defaulted in completion of the work, though he would admit that 75% value of the tender is executed. The only bone of contention appears to be the work of stringing of the poles.
The learned Senior counsel would submit that for the purpose of stringing what is necessary is procurement and placement of conductors.
The learned Senior counsel would submit that not a single conductor is procured as on date. Therefore, would not be in a position to complete the work.
The learned Senior counsel, Sri. Udaya Holla would dispute the position to contend that the conductors are procured and it would be executed immediately in terms of the contract. The only issue was with regard to agitating formers and therefore would submit that by the next date, the petitioner would begin stringing work of the poles in places where there is no agitation to demonstrate its bonafides. If no conductor is shown to the respondents or stringing work would not commence, the interim protection would get vacated.
List this matter on 27.01.2023. Interim order granted earlier shall continue till next date of hearing.”
11 On 01-02-2023 the following order was passed:
“This Court on 23.01.2023 had passed the following order:
"Heard learned Senior counsel, Sri.Udaya Holla appearing for the petitioner and Sri. S. Sriranga learned Senior counsel representing the respondents.
Learned Senior counsel, Sri. S. Sriranga would submit that petitioners have defaulted in completion of the work, though he would admit that 75% value of the tender is executed. The only bone of contention appears to be the work of stringing of the poles. The learned Senior counsel would submit that for the purpose of stringing what is necessary is procurement and placement of conductors.
The learned Senior counsel would submit that not a single conductor is procured as on date. Therefore, would not be in a position to complete the work. The learned Senior counsel, Sri. Udaya Holla would dispute the position to contend that the conductors are procured and it would be executed immediately in terms of the contract. The only issue was with regard to agitating formers and therefore would submit that by the next date, the petitioner would begin stringing work of the poles in places where there is no agitation to demonstrate its bonafides. If no conductor is shown to the respondents or stringing work would not commence, the interim protection would get vacated.
List this matter on 27.01.2023. Interim order granted earlier shall continue till next date of hearing."
In terms of the said order, the learned Senior counsel appearing for the petitioner had undertaken that the conductors are procured and the work of stringing on the poles would commence where there is no agitation of the farmers to demonstrate its bonafides. Again the matter is back to square one, as the learned Senior counsel appearing for the
12 petitioner projects, with the help of the photographs appended to the application, contending that the farmers are still agitating for non payment of compensation and they are not permitting the petitioners to either lift the conductors from the godown or the wear house, where the conductors are stored, and further submits that the reason for the agitation is the non payment of compensation to the farmers.
The learned counsel appearing for the respondent would submit that the validity of the cheques, which had been kept ready for payment to the farmers had expired and therefore, they have all been re-validated. He would undertake that as and when, stretch by stretch, the work of the petitioner gets completed, the cheque would be given to those farmers, on whose land the poles and strings are drawn.
The learned Senior counsel for the respondent would submit that such an undertaking be placed on record and the responsible officer would be present at the time when the completion of the work happens, stretch on stretch, to distribute the cheque to the farmers.
The Superintendent of Police, Chitradurga shall over see that the work gets completed as it is in public interest and also indicate the order of this Court to those farmers, who are agitating, about this order. In the event the respondent - Corporation would not pay compensation to the farmers as is undertaken, the matter would be viewed seriously. Likewise, if the work is not completed despite the agitation of the farmers being suspended, would also be viewed seriously.
The learned Senior counsel would further undertake that the work would commence immediately and progress in the work would be bought before this Court in a fortnight.
13 It is made clear that despite this order and the agitation of the farmers being suspended, the petitioners would not commence the work and do it to the tune of completion of 15 days, the petition would not be entertained, for any further orders.”
(Emphasis supplied)
On 27-02-2023 the following order was passed:
“Heard Sri. Udaya Holla, learned Senior counsel appearing for the petitioner and Sri. Sriranga S., learned Senior counsel appearing for the respondents.
The learned counsel for the respondents submit that there is a breach of the order inasmuch as out of 176KMs of stringing that have to be done, only 9KMs have been achieved, which would demonstrate that the stringing work is going at a snail's pace and no conductor is procured for execution of the work.
In the event, the petitioner would not show swift and substantial progress in achieving the interim order that was granted earlier, no further indulgence by way of interim measures would be shown and the matter would be considered on its merit.
List this matter on 16.03.2023.”
On 27-03-2023 and 30-03-2023 the matter was again heard. The learned senior counsel for the petitioner in terms of orders that are passed by this court would further seek to contend that the Corporation has not paid complete compensation. Wherever compensation is paid and farmers have not been agitating, the
14 work is completed. According to the learned senior counsel for the petitioner, the work is completed in 9 kms. as compensation is paid by the Corporation only for those places. Refuting this submission as well, the learned senior counsel for the 1st respondent /Corporation would contend that 9 kms. work is performed by the petitioner on the directions of this Court, as otherwise, he would not have performed those works as well, as he has not even procured what is necessary for the work to be performed. Again refuting these submissions, the learned senior counsel for the petitioner would contend that the Corporation has stopped releasing funds. Unless the Corporation releases funds, it is unimaginable how it could allege that procurement of material is not made.
In the light of the aforesaid submissions and contra submissions, one stream that runs through those submissions and orders that are passed by this Court is that the allegation of non- performance of work or its non-completion by the petitioner is allegedly on account of non-payment of compensation to farmers and non-timely release of funds to the petitioner. This is refuted by
15 the Corporation by taking recourse to plethora of documents produced before this Court.
I have given my anxious consideration to the submissions made by the respective learned senior counsel and have perused the material on record. In furtherance whereof, the issue that falls for consideration is: “Whether the case on hand would require any interference under Article 226 of the Constitution of India as it is in the realm of contract and certain disputed question of fact?”
The afore-narrated facts and link in the chain of events are not in dispute and are, therefore, not reiterated. The Corporation issues a notice inviting tender for the following purpose: “Construction of following transmission lines in challakere taluk, Chitradurga District on Total Turnkey Basis including Supply of all matching Materials/Equipments and Erection (Including Civil Works) of all Materials/Equipments, Testing and Commissioning:
a. Replacement of existing 66kV DC Coyote lines on DC towers between 220/66/11kV Hiriyur
16 station to Hariyabbe tap point by 66kV DC Drake line on DC towers for a distance of 18.928km.
b. Replacement of existing 66kV SC Coyote line on SC towers between 66/11kV Hariyabbe sub- station to Hariyabbe tap point by 66kV DC Drake line on DC towers for a distance of 9.628km.”
(Emphasis added)
The petitioner emerges as the successful bidder. Certain special conditions are stipulated in the tender while executing a contract with the successful bidder. Clauses 8.2.1, 8.3.1 and 13.3 read as follows: “8.2.1 STAGES OF PAYMENT:
The terms of payments will be as stated below;
(1) Fifty Five percent (55%) of the Ex-works price plus 100% Taxes i.e., CGST, SGST, IGST, UTGST, Custom Duties on Imports, cess if any, as the case may be and 100% Freight & Insurance charges in respect of materials (on receipt of 1st Bill after supply of Turnkey Materials) shall be paid on MAS (Material Acknowledgement Statement) subject to the following:
i. Material Acknowledgement Statement issued by the consignee Divisions.
ii. Copy of the Certificate of Transit Insurance.
iii. Pre-dispatch clearance certificate issued by the owner, prior to dispatch of the Consignment.
iv. Packing list/Bill of materials.
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v. Contractor's Detailed Invoice.
vi. Test Certificates.
vii. Physical Verification Certificate by the site Engineers.
(2) Twenty Five percent (25%) of Ex-works price of materials shil be paid progressively on erection of the equipments/materials.
(3) Ten percent (10%) of Ex-works price of materials shall be paid on successful completion of Trail Operation.
(4) Ten percent (10%) of the Ex-works price in respect of materials shall be paid on submission of required number of reproducible, manuals, approved drawings, test report and pamphlets and complete documents pertaining Transmission lines / Sub-Stations.
The above payment terms are subject to the following conditions stated herein below:
i. The zonal Chief Engineers, Electricity, Should ensure before making any payment towards materials received at the material has been supplied as per Activity Chart pertaining to the work concerned.
ii. The work going according to the plan.
iii. Notwithstanding anything contained to the contrary in the bid documents, storage insurance for materials stored at the site by the contractor shall be to the account of the Contractor alone and no amount whatsoever is payable by the KPTCL. …
…
… 8.3.1 Ninety percent (90%) of the Erection and Civil Works Price Component plus 100% Taxes ie.,
18 CGST, SGST, IGST, UTGST, levies, surcharge/cess etc if any of the Package shall be paid progressively on prorata basis on Certification by the Engineer, for:
i) The quantum of work completed.
ii) The successful Completion of Quality Check Points involved in the Erection. …
…
…
3 The total amount of penalty for delay under the contract shall be subject to a maximum of ten percent (10%) of the total contract price and CGST, SGST at prevailing rate and the owner has got every right to terminate the contract without any liability if it crosses 10%.”
In terms of the afore-quoted clauses of the tender document, the petitioner was awarded a letter of intent of 01-07-2021. The period of completion of contract was 12 months from the date of issuance of letter of intent including the monsoon period. A contract agreement was also signed between the parties. The petitioner had to furnish a bank guarantee for Rs.35,09,878/- which would be 3% of the estimated cost. On 24-09-2021 a detailed work order for erection of equipment was issued to the petitioner. The petitioner claims to have garnered necessary machinery and equipments and started executing the work in terms of the timeline stipulated by
19 the Chief Engineer, Electricity for completion of work. The time line is as follows:
“Stag e I Stage-I-2 Months Check survey, approval of Vendors/drawings ,etc., 60 01-Jul-21 29-Aug -2021 1 Conducting check Survey 60 01-Jul- 2021 29-Aug - 2021 2 Setting up of site office, sheds and stores etc.,
60 01-Jul- 2021 29-Aug - 2021 3 Detail Engineering consisting of Conducting detailed Survey if required, finalization of route, Approval of Check Survey/ Detailed Survey, Approval of Sub Vendors, Approval of drawings, Approval of GTP’s Approval of type test reports etc., for the materials like Tower Parts with accessories, Conductor/Ground wire with accessories, Insulator Strings with clamps and hardwares etc.,
60 01-Jul- 2021 29-Aug - 2021 Stage II Stage-II-4 Months Excavation, Supply of stubs and stub concreting etc., (25% of total location per month to be completed)
120 30-Aug- 2021 27-Dec- 2021 1 Excavation for tower foundation
120 30-Aug- 2021 27-Dec- 2021 2 Soil Classification 120 30-Aug- 27-Dec-
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2021 2021 3 Supply of stubs with Bolts and Nuts for Stubs
120 30-Aug- 2021 27-Dec- 2021 4 Stub concreting 120 30-Aug- 2021 27-Dec- 2021 5 Tower Protection Works if necessary
120 30-Aug- 2021 27-Dec- 2021 Stage III Stage-III-3 months supply of tower parts and tower Accessories Erection of Towers etc.,
90 28-dec- 2021 27-Mar- 2022 1 Supply of tower parts with Bolts and Nuts for Stubs
90 28-dec- 2021 27-Mar- 2022 2 Supply of tower Accessories
90 28-dec- 2021 27-Mar- 2022 3 Erection of towers and fixing of tower accessories
90 28-dec- 2021 27-Mar- 2022 4 Tower Protection Works if necessary
90 28-dec- 2021 27-Mar- 2022 Stage IV Stage-IV-3months Supply of Conductors, Insulators and Hard Wares Accessories etc., Stringing , inspection and Testing and Commissioning
95 28-Mar- 2022 30-Jun- 2022 1 Supply of Ground wire and Ground Wire Accessories
80 28-Mar- 2022 30-Jun- 2022 2 Supply of Insulator Strings, Clamps, Arching Horns and hardware
80 28-Mar- 2022 30-Jun- 2022 3 Supply of ACSR Conductor 80 28-Mar- 30-Jun-
21 and Conductor Accessories
2022 2022 4 Stringing of Grond wire/ACSR Conductor
80 28-Mar- 2022 30-Jun- 2022 6 Inspection and Testing and commissioning 15 16-Jun- 2022 30-Jun- 2022”
The timeline stipulated was not for completion of work at one stroke. But, since the work involved three stages – supply, erection and other civil works, the timeline was divided into three stages from conducting check survey up to inspection, testing and commissioning of the project.
The petitioner claims to have begun execution of work with all wherewithals but faces stumbling blocks or impediments. During November-December, 2021 there was unprecedented rains which resulted in access to the lands becoming very difficult necessarily slowing down completion of work. After the first block of this kind, in the month of December, 2021 farmers in Chitradurga started to obstruct the work and staged protest on the ground that they were not paid compensation. The petitioner claims to have communicated this matter of protest to the Corporation. The agitation did not stop. It continued for months unending. Since the
22 work of the petitioner got hampered and the deadline was fast approaching, the petitioner communicates to the Corporation on 22-04-2022 bringing it to the notice of the Corporation the reason behind snail’s pace in execution of the work. Since this is first of the communication, it assumes certain significance and it is required to be noticed. It reads as follows: “Inviting your kind attention to the Letters under references above, we write to state that the Chief Engineer, T&P, KPTCL has awarded the subject work to us vide LOI's under reference 1 a,b,c. We executed the agreements on 19.07.2021 duly furnishing the Bank Guarantees as stipulated in the LOI's and thus fulfilled the formalities.
Subsequently the Chief Engineer Ele, T&P, KPTCL issued the DWA's for further action.
Now, we would like bring to your kind notice that, the subject project execution works has been initiated successfully with massive men and machineries after receiving the approvals of the Check Survey.
Earlier in the month of November and December, the project was successfully under progress and work progress was flowing as per the approved activity chart and timelines stipulated but unfortunately the unusual rain which has down poured in the entire states of Karnataka, Tamilnadu and Kerala has put entire work progress to a sudden halt and slowdown as the wet grounds across the corridors and the access walkway roads to locations are filled with huge water pots and muddy water surfaces which has restricted the entire movement of 45 labours including transits of water tankers, JCB, Tractors and no materials could be transported near stub concrete locations.
23 The unusual situation raised because of drop in pressure in the sea at Bay of Bengal and the storm wing flow with rain hit across the southern states and disturbed the daily life to a larger extent and the work was halted for almost 45 days, even though rain persisted for 20 days but the wet ground took more than 25 days to dry up and resume normal operations.
Even under these unusual and toughest conditions we persisted the work progress beyond our capacity with huge financial liabilities as we did not move men and machineries from the site and we lost more than 60days.
When the rain has stopped, the work progress initiated to a normal operations and could be able to reach 93 tower stub concreating works by the end of December with all support from the Executive Engineer and the entire staff without forgetting to mention the most supportive act of your kindself.
Later on in the beginning of January, again the work has been stopped completely as we were facing stiff resistance from farmers and land owners to work in their lands as crops such as Pulses, Cotton Sunflower, Onion, Corn, etc., had have been come for harvesting (photos enclosed for your kind reference) and demanded KPTCL authorities to visit the site regarding the clarity on compensation issue and same has already been updated to your kindself and at the office of the Executive Engineer Ele., Major Woks Division, Chitradurga and here we lost almost 30days.
For the last three months the entire work progress started derailing because of ROW issues and farmer’s agitations which are addressed with best possible ways under the guidance of your kindself and the Executive Engineer as the scheduled meeting of DC was also arranged by the Department with Farmers to the possible break ways for solutions to resolve the compensation issues Resulting of which we complete 110 tower stub concreating and 87 tower erection works as on 23 March.
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And now, the line work has again been stopped completely since last month as farmers and land owners are not allowing us to work in their lands as they are not convinced with the compensation amount fixed and approved by the DC and demanding us more than 5 times excess to the compensation amount. Also demanding for KPTCL authorities to visit the site regarding the clarity on compensation issues specially at location nos. 2,8,9,10,11,12,18,19,30,53,35,78,21&34 (at location no. 21 and 34 foundation had been completed). Same as already been brought to your kindself and at the office of the Executive Engineer Ele., Major Works Division, Chitradurga.
As there is no fault from our end and as explained above the unusual natural calamity and ROW has declined the progress to a larger extent. These issues are taking away our stipulated time for the project, we kindly request for the time extension by another six months and also our bills can be processed without LDS.
We are an integral part of KPTCL with a dedicated motto to serve the KPTCL by executing the subject project to the satisfaction of the Department.
We humbly and kindly request your kindself to consider our request as per the facts explained and also kindly request to extend time by six months for the subject project so that we can reschedule the activities as per the circumstances defined. We assure our best services to complete the project ahead of the time schedule if ROW issues resolve earlier.”
(Emphasis added)
The communication narrates that it was the rain initially that led slow pace of work and the work was stopped from January as the
25 petitioner was facing stiff resistance from farmers and land owners as compensation for loss of crop had not been disbursed by the Corporation. Extension of six months was sought by the petitioner in the light of the aforesaid circumstance. This was replied to by the Corporation on 27-05-2022. The contents of the communication read as follows: “Further, as per the report of the field engineers the work was stopped on 25.03.2022 i.e., there is no work from the last two months. In this regard meetings were held at the corporate office KPTCL Bengaluru on 18.05.2022 - Chaired by the Hon’ble MD and on 26.05.2022 – Chaired by the Hon’ble Energy Minister. In both the review meetings directions were given to close the project within the target time since the said RE-Generation project is to be completed as at the earliest. The balance time is approximately one month from the date of this letter. The monsoon is approaching from july-22 so we have to complete the project within the monsoon.
In this connection, it is also observed that the conductor is not supplied for the subject works till date. Hence, you are hereby instructed to re-commence the said line work and complete the balance portion of works within the target date without giving further delay”.
The Corporation observes that as per the report of field engineers, the work was stopped from 25-03-2022 and for the last two months there was no progress. Therefore, it was directed that since monsoon is approaching from July 2022, the petitioner had to complete the project within the said period. Again on 07-06-2022 a
26 communication is made to the petitioner to complete the project. This is replied to on 9-06-2022 that it is doing its best to complete the project and justifying the delay. The communication reads as follows: “Sir, With reference to the above cited letters, we kindly request to note innumerable efforts have been put together across against all odds to complete the subject work in coordination with your department.
With your support we are doing our best possible endless efforts to resolve the ROW issues consistently from the beginning of project to till date but the ROW issues have been piled up to a largest extent from the last three months and not allowing us to make the progress, the department is also well aware of the situation and doing their best to resolve the issues.
Thrice LC request was denied because of SSLC examination and Hon’ble Chief Minister program even though we have kept men and machineries ready for execution. Approximately 200 lakhs worth of supplied tower materials, Insulators, Hardware materials, Cement, M Sand, Jelly and machineries laying idle since last four months and we are paying huge debts because of ROW issues and incurring huge financial cumulative losses on daily basis.
Bringing of conductors at this stage is of no use as the situation of ROW and 31 towers erection pending will cause huge financial implications to both.
Also, the land lords from whom we are facing ROW issues does not have a proper revenue documents and demanding huge amount as a compensation inspite of our repeated requests. As such we kindly request for your kindself and department intervention with the land lords so that
27 ROW issues can be brought down and work execution can be completed at the earliest. The supply of conductor can be made available depending on the resolution of ROW issues (still we have 31 tower erection and 12 stub concrete work to be completed in the subject work).
Only because of ROW issues our burdens are too high and damaging our financials to an extent of 200 lakhs.
Kindly help in holding us to excel in the prevailing situations.”
(Emphasis added)
On 15-06-2022 this was replied to by placing the problem on the petitioner that though compensation had been paid to all the land owners, the work was not completed and, therefore, a deadline was given that before 30-06-2022 the work should be completed. This is again replied to in detail by the petitioner on 18-06-2022. One of the prime reasons projected by the petitioner is non-payment of compensation to the land owners. The relevant portion of the reply reads as follows: “Inspite of many hurdles, till now we executed 111 foundations, stub concrete and 91 tower erection works only because most of the landlords and farmers have proper revenue documents with crop certifications, which has given us strength to issue compensation on the spot and complete the work.
Thrice LC request was denied because of SSLC examination and Hon'ble Chief Minister program even though we have kept men and machineries ready for
28 execution. Approximately 200 Lakhs worth of supplied tower materials, Insulators, Hardware materials, Cement, M Sand, Jelly and machineries lying idle since last few months and we are paying huge debts because of ROW issues and incurring huge financial cumulative losses on daily basis.
Farmers have theft our materials such as Hardware items, Insulators and 6 to 8 tons of tower materials from erected towers to compensate their demands.
The land lords from whom we are facing ROW issues does not have complete revenue documents, crop certificates and demanding huge amount as a compensation inspite of our repeated requests.
Only because of ROW issues our burdens are too high and damaging our financials to an extent of 200 lakhs and more.
Sir, we sincerely request to collectively call left out 20 to 25 farmers and landlords for a meet and convince and make them to agree for the compensation fixed by the KPTCL which may give us some kind of hope to move further as revenue document and crop certificates remains as a big challenge and hope we can continue the work to a larger extent.
As such once again we kindly request your kindself to extend your support and department intervention with the land lords so that ROW issues can be brought down and work execution can be completed at the earliest
Also we would like to inform that even today we are putting our endless efforts through different source to convince farmers and to make them to accept the compensation rates fixed by the KPTCL and to complete the subject project at the earliest.”
(Emphasis added)
29 The petitioner requested that collectively about 20 to 25 farmers and landlords have been agitating that compensation is not paid to them and, therefore, sought payment of compensation and extension of time to complete the project. On arriving of deadline, a communication is made by the Executive Engineer of Chitradurga observing as follows: “Further, KPTCL has arranged the LC on 66kV Hariyabbe tap point to Rangenahalli Station from 04-06- 2022 to 15-06-2022 and instructed to carry out the erection of 66kv towers. In this regard you have erected only 03 nos of towers and stopped the work on 13.06.2022. As per the field report of the AEE and the AE that if the compensation amount arranging by the agency, we would have to complete all the 14 towers in that stretch.
We have already informed orally and also written letters by the undersigned and also the juri ictional AEE of subdivision that the work is to be completed on top priority.
In your letter cited under reference (4), wherein you have intimated that the land owners are not ready to accept the compensation as per the compensation rates issued by the KPTCL and demanding more rates than the approved and also there is a severe ROW issues in the works spot. Hence you are unable to take the work.
In this connection, it is hereby informed that with your best efforts with the coordination of KPTCL staff we have completed 111 Nos of Foundation (Concreting work) and 96 Nos of towers erected within a span of 4 to 5 months even though there is a severe ROW issues. ROW issues are the part and parcel of the transmission line work in anywhere of ongoing projects. As per the directions of our higher authority including our Hon'ble Energy Minister,
30 Hon'ble M and DT KPTCL, they have directed to complete the work within the target period in the meetings. "If the ROW issues occurred in the field you have to take the police protection and complete the work as early as possible”. And also informed that they are arranging the police protection duly intimating to the ACS (Home), the concerned DC and also the SP of the juri ictional area.
At present you have completed 75% of the DWA work but you have not supplied the Drake Conductor to the works spot till date even after reminding the several times by the undersigned and also as per the activity chart.
In this connection, once again you are hereby requested to bestow your personal attention and to supply the Drake conductor as per the activity chart and also restart the work at the earliest. Otherwise the matter will be viewed seriously and it will effect on the finalisation of the Delay Condonation.
Please treat this matter as "MOST URGENT”.
The observation is that the petitioner has completed 75% of DWA work but has not supplied the Drake Conductor to the works spot till date even after reminding several times. It was again requested to complete the work immediately. Another letter of the kind was issued on 01-07-2022. This was replied to by the petitioner on 02-07-2022. Noticing of this reply becomes germane and it reads as follows:
“Respected Sir,
31 Kindly request to read this letter in conjunction with our previous letter (letter enclosed) for your kind reference for the clarity of the subject matter explained in detail.
Inspite of our detailed explanations with the relevant facts iterated in our last letter No:VE/KPTCL/HIRIYUR- HARIYABBE/2022-23/40 dt: 18.06.2022, the contents have been overlooked and ground realities are not considered which is implicating the magnitude of ROW issues.
We need your kind intervention with farmers to meet across for a specific resolution regarding the specified compensation issues and crop certificates
ROW issues which are affecting the many on going projects across the Chitradurga district shows the severity of ROW issues and many projects are taking its own time because of the serious resistance from the farmers and land lords.
Inspite of many trailing projects across Chitradurga District, we have taken huge initiatives to come across most of the hurdles till now and we will continue to do the same till the completion of the project. We will not be discouraged by the relative issues as your utmost support is timely needed in terms of meeting farmers and arranging police force for the project.
ROW issues are part and parcel of the transmission line works in anywhere of ongoing projects and hence delay is also an integral and inevitable part of the system as farmers are neither guided by any specific rules and regulations for compensation related issues which further makes it difficult to approach the farmers to convince to carryout the job.
Remaining foundation and erection of towers need your direct help in providing police protection as it is beyond our capacity to convince them with present situation as they have seeded the land and
32 monsoon is already set which makes more difficult to move men and machineries across the wet harvested field damaging their harvests which we need to address sensitively.
As requested in our last letter, kindly request to call upon the remaining farmers for a meet to conclude the relative ROW issues so that we can proceed further works under your supervision with police protection. Further we need to address the issues of farmers who are not having proper revenue documents.
We here by once again kindly request your kindsell to note the hard work and dedication gone into the progress of the project inspite of so many trailing projects. Also request for further guidance for completing the foundation and tower erections with police force and compensation settlements so that further we can plan for stringing”.
(Emphasis added)
To this reply photographs were appended where farmers are seen agitating and blocking the way of entry of the petitioner or officers of the Corporation into their lands. The Corporation did not pay compensation as was necessary but communicates to the petitioner on 19-09-2022 through the Executive Engineer which reads as follows: “At present you have completed nearly 70% of the DWA work and you have supplied nearly about 05 Kms Drake ACSR conductor to the work spot even after several reminders the undersigned and also sub-divisional officers & now the inspection call is raised to an extent of 25Kms against total 173Kms as per DWA quantity. Further, you
33 have to arrange the balance Drake conductor as per the DWA quantity at the earliest.
We have restarted the work on Dt:13-07-2022 and 14-07- 2022, but we are unable to take up the work due to severe ROW issues at Hariyabbe Village limits. In this regard, we have approached the DC Chitradurga and the SP Chitradurga to arrange the police protection. Even after several persuasions with the land owners and also the Police force, the farmers are not allow us to take up the work since they are demanding for the land corridor compensation the existing line. In this regard, we have communicated the said severe ROW issues to corporate approval for corporate office. Now the corporate office has communicated the corporate approval for corridor compensation to the existing 66kV line between Hariyabbe to 220kv SRS Hiriyuru.
In this connection, the CEE, TZ, KPTCL, Tumakuru had conducted a meeting on 15.09.2022 at Hiriyur 220kV RS wherein it is intimated to re-start the work from 17.09- 2022 Further, the MLA Hiriyur has conducted a meeting on Dt: 19-09-2022 at MLA Office along with the land Owners, the Thahashildar Hiriyur, the Dy SP Hiriyur and the KPTCL Office including the agency representatives wherein the MLA Hiriyur has discussed the issues and informed to the land owners that “the land corridor compensation for the existing line is be arranged by the KPTCL as per the norms, so allow them to take up the work and not to resist for the work" And also informed to the KPTCL that the balance work is to be take up after three/four days and it will be completed as at the earliest. Finally, informed to the Thahashildar Hiriyur and the Dy SP Hiriyur to co-ordinate for the work. Now, the issues are resolved.
Hence, as per the instructions of the CEE, TZ, Tumkuru and also as per the MLA Hiriyur instructions in the meeting dated 19-09-2022, you are hereby requested to restart the work within 22-09-2022 without fail duly deploying the separate batches for foundation, erection and stringing on either side of the said work and also supply the balance Drake conductor as per the activity chart.
34 Otherwise, the matter will be viewed seriously by the KPTCL authority.
Please treat this matter as "MOST URGENT”
The Executive Engineer claims to have held discussions with the Deputy Superintendent of Police, Hiriyur and representatives of the petitioner and Member of Legislative Assembly had discussed the issue and had informed the land owners that the land corridor compensation for the existing line is to be arranged by the Corporation as per the norms. So it was requested that the farmers allow them to take up the work and not resist the work.
What would emerge from this communication is that the land corridor compensation was yet to be completely paid. The Superintending Engineer again communicates to the petitioner that the Department is continuously pursuing with the farmers to end their agitation. The communication reads as follows: “I am directed to inform that during your meeting with DT KPTCL on 19.09.2022, you were informed about the Chitradurga MW div office visit by DT on 20.09.2022. Inspite of that you have not attended the meeting. This shows your utter negligence in completing the project.
As per clause 1.3 of Special conditions of Contract "Any way leave problem. obstacle, hindrance should be cleared by the contractor. The Owner shall also stand by
35 the contractor and extend necessary help and cooperation for removal of obstructions and hindrances". It is the scope of the agency to resolve ROW issues and complete the work at the earliest. Inspite of this, KPTCL officials had 3-4 meetings with land owners, who were objecting for line construction and resolved certain ROW issues and continuously persuing with DC, SP and other local police officers of Chitradurga, to resolve ROW issues. But you are not deploying sufficient labour force for stringing and not brought the required Drake conductor.
All these acts shows your casual approach towards completing the project. The progress achieved at your end is very poor in spite of all the co-operation extended from KPTCL. Hence I am directed to inform you to furnish reasons/ justification for the delay in execution of work and reasons for not bringing Drake conductor and not completing the line works, within 7 days of reaching of this letter. Otherwise we are bound to initiate strict action against your agency.
Draft approved by Director(Transmission)”
The Superintending Engineer observes that the petitioner has shown casual approach towards completing the project and the progress achieved at the petitioner’s end is very poor in spite of co- operation extended by the Corporation. It was directed that the petitioner to submit reasons for not completing the work in time. This was replied to by the petitioner on 03-10-2022 which was a collective of all the earlier replies but the reason remains the same. Notices and replies between the petitioner and the Corporation
36 galore and the reason again rendered by the petitioner is the same that has been agitated throughout.
The Corporation issues a show cause notice to the petitioner on 28-10-2022. The relevant portion of the show cause notice reads as follows: “In spite of several instructions issued in the above reference letters (2) to (7) from this office and Executive Engineer (Ele)., Major Works Division, Chitradurga to re- start and complete the subject work within targeted date, you have failed to start the work and complete the balance work,
During the meeting held on 17.10.2022 at under signed office under the chairmanship of Hon'ble Director (Transmission), you have agreed to restart the work after rain stops, from 20-10-2022 there is no rain in the Project Site. However, you have not re-commenced the work even after several persuasions by this Office and Division Office over phone.
As on date there is already a lapse of 4 months from the target date & till date after repeated persuasion at various levels of KPTCL, you have not commenced the balance work showing diligence and negligence attitude towards the work.
As the commencement of the subject work is delayed inordinately as narrated above, why action shall not be initiated on your firm as per the Terms and Conditions of Award.
Acknowledge the receipt of this letter with your compliance within 3 days failing which this notice will be treated as the Final Notice and this office is constrained to initiate action as per the Terms & Conditions of Award, action will be initiated against you as per Clause No: 44
37 (Recovery of Maximum 10% of Penalty, Short Closure of the Contract, Entrustment of Uncompleted Portion Work under Risk and Cost to your Firm, Encashment of Performance BG in case of Non Extension up to the date of Completion and Blacklisting of the firm for 3 Years from participating in KPTCL Tenders without any further Notices.”
The Corporation observes that there is inordinate delay in completion of the project and seeks the petitioner to show cause as to why the contract shall not be terminated and the firm be blacklisted for three years without any further notice. It is to this notice, the petitioner replies on 02-11-2022. The reply assumes significance. It is in this reply the petitioner amplifies the submissions and also sought that no adverse action be taken against the petitioner. Again on 01-12-2022 another show cause notice is issued for the same reason and indicating the same action as was earlier indicated. This is again replied to by the petitioner in detail and a final notice was issued on 17-12-2022 which is verbatim similar to the show cause that was already issued earlier. To this again, the petitioner submits its reply on 20-12-2022. Despite detailed reply, the Official Memorandum is issued on 23-12-2022 terminating the contract and blacklisting the petitioner and disabling it from participating in any tender floated by the
38 Corporation and its ancillary companies for a period of three years. The two paragraphs of the Official Memorandum and the order require to be noticed and they read as follows:
“10. The KPTCL has approached the Deputy Commissioner, Chitradurga, Superintendent of Police, Chitradurga and Thahashildar, Hiriyur regarding resolving the ROW issues. During the meeting, the Executive Engineer(Ele)., Major Works Division, Chitradurga and team has requested Agency to accompany to meet the District Administration, but Agency's representative Mr. Nagaraj has refused to co-ordinate with the KPTCL Officers. It shows that Agency's negligent attitude towards resolving of the ROW issues, execution and completion of the work.
Further, it was instructed to the Agency to re- commence the Balance Work and Complete the same immediately through many letters and over phone. During the meeting held on 17.10.2022 at under signed office under the chairmanship of Hon'ble Director (Transmission), the Agency has agreed to restart the work after rain stops, from 20-10-2022 there is no rain in the Project Site. However, the Agency has not re-commenced the work even after several persuasions by this Office and Division Office over phone. During the meeting held at Chitradurga on 14- 12-2022 informed to Agency to re-start the balance work from 15-12-2022. But, Agency has not deployed the batches from 15-12-2022. In the view of above, this office has given show cause notice on 28.10.2012 & 09.12.2022 and Final Notice on 17.12.2022 to restart the work and Agency has mentioned so many constraints to restart the work without deploying labours and without supplying required conductor for the stringing work at the site.
…
…
…
HENCE THIS ORDER,
39
Under the circumstances explained in the preamble, the following works awarded to you "Replacement of existing 66KV DC Coyote Line on DC Towers between 220/66/11KV Hiriyur Station to Hariyabbe Tap Point by 66KV DC Drake Line on DC towers for a distance of 18.928km & Replacement of existing 66KV SC Coyote Line on DC Towers between 66/11KV Hariyabbe Substation to Hariyabbe Tap Point by 66KV DC Drake Line on DC Towers for a distance of 9.628Km on Total Turnkey Basis" is hereby Terminated with immediate effect as per VOL-I, SECTION-III of GCC Clause No. 44: Contractors Default. The date of Termination of Contract is to be noted as the date mentioned in this O.M subject to the following conditions;
The above work awarded to M/s. Vijayalakshmi Enterprises, Bengaluru is hereby Short Closed under Contractor's default.
Any Amount Payable to M/s. Vijayalakshmi Enterprises, Bengaluru on account of this project is to be withheld up to completion of the project to be adjusted under Risk & Cost to M/s. Vijayalakshmi Enterprises, Bengaluru.
The Balance Portion of Penalty as per Clause 14.0 is to be recovered out of any bills/any amount due to M/s. Vijayalakshmi Enterprises, Bengaluru, as per Clause 44.2. 4. M/s. Vijayalakshmi Enterprises, Bengaluru is to hand over all the materials for which payment has been made by KPTCL to the KPTCL Authorities during joint inventory.
M/s. Vijayalakshmi Enterprises, Bengaluru has to furnish the bank Guarantees as per Clause 44.3 against the Contract till completion of the Project under Risk & Cost. If the Bank Guarantee is not renewed action will be taken to encash the Bank Guarantee held by KPTCL.
40
The Balance Portion of the Project will be executed and the extra cost on account of the Termination of the Contract under Contractor's Default will be charged to M/s. Vijayalakshmi Enterprises, Bengaluru.
M/s. Vijayalakshmi Enterprises, Bengaluru has been Blacklisted from participation in any Tenders of KPTCL/ BESCOM/ GESCOM/ HESCOM/ MESCOM/ CESC for a period of 3 Years from the date of this Order.
The Amount shown in Para-14 is subject to confirmation by M/s Vijayalakshmi Enterprises, Bengaluru.” (Emphasis added)
As observed hereinabove, this Court owing to public interest involved in the issue passed several orders permitting the petitioner to complete the project at least during the pendency of the petition. The project was not completed but affidavits and counter-affidavits were filed before this Court. Affidavits indicate the reason as to why the work could not be completed despite interim order passed by this Court, as it was the agitation of farmers which the Corporation refuses to accept and has filed its counter affidavits along with photographs seeking to demonstrate that the petitioner has been absolutely callous in executing the work and, therefore, the Official Memorandum that is issued is
41 perfectly justified. The petitioner has filed an affidavit appending certain documents. The total number of cheques that had been issued by the Corporation to the landowners/farmers is 700 and what is prepared by the Corporation is 34 cheques and even the amounts insofar as those cheques are concerned are not disbursed. This could be gathered from the communication dated 24-01-2023 of the Executive Engineer, Major Projects. The indication in the communication is as follows: “ªÉÄîÌAqÀ «µÀAiÀÄPÉÌ ¸ÀA§A¢ü¹zÀAvÉ, ªÉÄð£À «µÀAiÀÄzÀ PÁªÀÄUÁjUÉ ZÉPïUÀ¼À£ÀÄß CªÀ¢üAiÀÄÄ ªÀÄÄVzÀÄÝ, ¸ÀzÀj ZÀPïUÀ¼À£ÀÄß vÀªÀÄä PÀbÉÃjUÉ »A¢gÀÄV¸À¯ÁVgÀÄvÀÛzÉ. PÁgÀtªÉãÉAzÀgÉ ¸ÀzÀj PÁªÀÄUÁVUÉ wêÀæ vÀgÀªÁzÀ CqÀvÀqÉUÀ¼ÀÄ GAmÁVzÀÄÝ, ¸ÀzÀj CqÀvÀqÉUÀ¼À£ÀÄß ¤ªÁðºÀuÉ ªÀiÁrzÁåUÀÆ ¸ÀºÀ ªÉÄ: KeɤìAiÀĪÀgÀÄ PÁªÀÄUÁj vÉUÉzÀÄPÉƼÀîzÉà EgÀĪÀ PÁgÀt ZÉPïUÀ¼À£ÀÄß ¸ÀA§AzsÀ¥ÀlÖ d«ÄãÀÄ ªÀiÁ°ÃPÀgÀÄUÀ½UÉ ¤ÃqÀ®Ä ¸ÁzÀåªÁVgÀĪÀÅ¢®è. F ¸ÀA§AzsÀ ¸ÀA§AzsÀ¥ÀlÖ Kd¤ìAiÀĪÀjUÉ ±ÁmïPÉÆèÃ¸ï ¸ÀºÀ ªÀiÁqÀ¯ÁVgÀÄvÀÛzÉ. KeɤìAiÀÄÄ ºÉÊ PÉÆÃmïð ¨ÉAUÀ¼ÀÆj£À°è ZÀað¸À¯ÁVzÀÄÝ, ºÁUÀÆ ¤£ÉßAiÀÄ FAiÀÄjAUï£À°è PÁªÀÄUÁj ¢£ÁAPÀ:25.01.2023 jAzÀ vÉUÉzÀÄPÉƼÀÄîvÉÛÃªÉ JAzÀÄ ºÉýgÀĪÀ »£É߯ÉAiÀÄ°è F PɼÀPÀAqÀ ZÉPïUÀ¼À£ÀÄß £À«ÃPÀj¸À PÉÆqÀ¨ÉÃPÁVgÀÄvÀÛzÉ. ªÀiÁ£Àå GZÀÑ £ÁåAiÀiÁ®AiÀÄ DzÉñÀªÀ£ÀÄß ¥Á°¸À¨ÉÃPÁVgÀĪÀ »£É߯ÉAiÀÄ°è PÀÆqÀ¯Éà F PɼÀPÀAqÀ ZÉPïUÀ¼À£ÀÄß gÀzÀÄÝUÉƽ¹ ¢£ÁAPÀ £À«ÃPÀj¹zÀ ZÉPïUÀ¼À£ÀÄß PÉÆqÀ¯Éà MzÀV¸À®Ä F ªÀÄÆ®PÀ PÉÆÃgÀ¯ÁVzÉ.”
(Emphasis added)
The communication narrates that in terms of the order passed by this Court 34 cheques whose validity is over has to be revalidated and immediately kept for issuance. What would unmistakably emerge from this communication is that in the case of 34 farmers compensation is not paid and the farmers are being threatened
42 action without paying compensation. The communication dated 20-02-2023 reads as follows: “EªÀjUÉ,
ªÀiÁ£Àå f¯Áè¢üPÁjUÀ¼ÀÄ f¯Áè¢üPÁjUÀ¼À PÁAiÀiÁð®AiÀÄ, avÀæzÀÄUÀð f¯Éè, avÀæzÀÄUÀð.
ªÀiÁ£ÀågÉÃ,
«µÀAiÀÄ: »jAiÀÄÆgÀÄ J¸ï.Dgï.J¸ï.¤AzÀ ºÀjAiÀĨÉâ 66 PÉ« ªÀiÁUÀðzÀ ¯ÉÊ£ï£À°è PÁªÀÄUÁj £ÀqÉAiÀÄĪÀ gÉÊvÀjUÉ ¨sÀÆ ªÀÄvÀÄÛ ¨É¼É ¥ÀjºÁgÀ PÉÆqÀ®Ä C¢üPÁjUÀ¼ÀÄ ªÀÄvÀÄÛ gÉÊvÀgÉÆA¢UÉ ¸À¨sÉ £Àqɹ ¥ÀjºÁgÀzÀ ªÉÆvÀÛ ¤UÀ¢ü¥Àr¸ÀĪÀ §UÉÎ. **** ªÉÄîÌAqÀ «µÀAiÀÄPÉÌ ¸ÀA§A¢ü¹zÀAvÉ, »jAiÀÄÆgÀÄ J¸ï.Dgï.J¸ï.¤AzÀ ºÀjAiÀĨÉâ 66 PÉ« ªÀiÁUÀðzÀ ¯ÉÊ£ï£À°è PÁªÀÄUÁj £ÀqÉAiÀÄÄwÛzÀÄÝ, EzÀgÀ CrAiÀÄ°è §gÀĪÀ gÉÊvÀjUÉ ¨sÀÆ ¥ÀjºÁgÀ ªÀÄvÀÄÛ ¨É¼É ¥ÀjºÁgÀ ¤UÀ¢ü ¥Àr¸ÀzÉà AiÀiÁªÀÅzÉà E¯ÁSɬÄAzÀ ¥ÀAZÀ£ÁªÀÄ ªÀÄvÀÄÛ ªÀÄ°Ö ªÁå®ÆåªÉõÀ£ï ªÀiÁqÀzÉà ªÀÄvÀÄÛ gÉÊvÀjUÉ AiÀiÁªÀÅzÉà £ÉÆÃnøï PÉÆqÀzÉà ¥ÉÆÃ°Ã¸ï §AzÉÆç¸ïÛ ªÀiÁrPÉÆAqÀÄ gÉÊvÀgÀ£ÀÄß ºÉzÀj¹ PÁªÀÄUÁjAiÀÄ£ÀÄß ªÀiÁqÀÄwÛzÁÝgÉ. FUÁUÀ¯Éà £ÀqɹgÀĪÀ PÁªÀÄUÁj CrAiÀÄ°è §gÀĪÀ gÉÊvÀjUÉ AiÀiÁªÀÅzÉà ºÀt ¥ÁªÀw¹gÀĪÀÅ¢®è. ¥ÀjºÁgÀ ºÀt ¤UÀ¢ü DUÀĪÀªÀgÉUÀÆ PÁªÀUÁjAiÀÄ£ÀÄß ¸ÀÜVvÀUÉƽ¸À®Ä vÁªÀÅ Pɦn¹J¯ï E¯ÁSÉAiÀÄ C¢üPÁjUÀ½UÉ ¸ÀÆZÀ£É ¤ÃqÀ¨ÉÃPÉAzÀÄ PÉÆÃgÀÄvÉÛêÉ.
ªÀÄÄAzÀĪÀgÉzÀÄ, F ¸ÀA§AzsÀªÁV vÁªÀÅUÀ¼ÀÄ ¸ÀA§AzsÀ¥ÀlÖ E¯ÁSÉAiÀĪÀgÉÆA¢UÉ ªÀÄvÀÄÛ gÉÊvÀgÉÆA¢UÉ ¸À¨sÉ £Àqɹ D ¨sÁUÀzÀ J¯Áè gÉÊvÀjUÀÆ ¸ÀÆPÀÛ ¥ÀjºÁgÀ PÉÆr¸À¨ÉÃPÉAzÀÄ vÀªÀÄä°è PÉÆÃgÀÄvÉÛêÉ.
ªÀAzÀ£ÉUÀ¼ÉÆA¢UÉ,
EAw vÀªÀÄä «±Áé¹,
¢£ÁAPÀ: 20.02.2023 (PÉ.n.w¥ÉàøÁé«Ä) CzsÀåPÀëgÀÄ.”
(Emphasis added)
43 The petitioner has also appended several communications of farmers to the Deputy Commissioner on 20-02-2023 indicating that they have not received compensation for the last one year. These are matters of record. What would unmistakably emerge from the aforesaid communications between the petitioner and the Corporation as also communications from the farmers is that compensation being not paid to the farmers is one of the reasons for non-execution and completion of the work by the petitioner. Therefore, the Corporation ought to have paid compensation or deputed some officer to hand over compensation and immediately permitted execution of work.
The communications clearly indicate that the Corporation has not co-operated with the petitioner for disbursement of compensation to the farmers resultantly the work getting hampered. The Corporation is a statutory body. In any contract executed by the Corporation public interest would be paramount. Even in this project it would be in public interest that the work had to be completed without any loss of time. But, that does not mean that a farmer will not be paid corridor compensation for the work of
44 drawing up of lines. The Corporation took upon itself for payment of compensation to farmers. Without paying compensation, holding a stick and directing the petitioner to complete the work would not behoove the status of the Corporation being a State under Article 12 of the Constitution of India. No farmer can be left high and dry without payment of compensation for the loss of crops due to drawing up of transmission lines in their lands.
No doubt, no farmer or land owner can object to the drawing up of lines as it is settled principle that drawing up of transmission lines is in public interest and non-permitting their lands to be used for the said purpose would be contrary to public interest. But, this cannot be imposed upon farmers without payment of compensation. Adequacy or inadequacy of compensation is altogether a different circumstance which the landowners/farmers will have to agitate before the Deputy Commissioner. But, the farmers need to be paid compensation in the least as is necessary in law. The communications quoted hereinabove would clearly indicate that compensation is not paid to most of the farmers. The cheques that were drawn in the name of
45 farmers had lost their validity and despite these facts, the petitioner was directed to complete the work. This Court cannot ignore the fact that farmers are agitating due to non-payment of compensation and direct the petitioner to execute the work come what may, as public interest would suffer. The public interest has suffered and the reason for such suffering is the act of the Corporation in not paying compensation to the farmers.
The other callous approach of the petitioner could have been projected by the Corporation, if the Corporation had got over payment of compensation to farmers. This Court passed several interim orders owing to greater public interest involved in the project. Even then, the Corporation appears to have not paid the compensation which has led to snail pace or no progress in the work. Therefore, it becomes necessary for this Court to interfere with the impugned Official Memorandum, as the impugned Official Memorandum is issued revoking the bank guarantee and blacklisting the petitioner in addition to cancelling the contract.
46
A three pronged detrimental approach is made against the petitioner by way of impugned Official Memorandum. The reason behind this is undoubtedly non-payment of compensation which is an act in default at the hands of the Corporation. Therefore, the Official Memorandum is rendered unsustainable. Rendering impugned Official memorandum unsustainable would not mean that the petitioner can have a siesta and not complete the work. The Corporation shall deposit the amount of compensation in each of the farmer’s name, in any nationalized Bank or a Regional Rural Bank and indicate the same to every farmer who is agitating. Those farmers in whose account the compensation amount is deposited shall permit execution of work in their respective lands and on completion of execution of work in those farmers lands, the compensation amount in the bank shall be released in favour of those farmers. All this process shall be completed within three months. It is in those three months the petitioner would have the breathing time to complete the project.
For the aforesaid reasons, I pass the following:
47 O R D E R
(i) Writ Petition is allowed.
(ii) The impugned official memorandum dated 23-12-2022 stands quashed.
(iii) The 1st respondent/Corporation shall deposit compensation amount of the landowners/farmers in a nationalized Bank or Regional Rural Bank, the intimation or acknowledgment of which shall be handed over to the farmers. Both the Corporation and the petitioner shall inform or give intimation to the farmers in whose lands the transmission lines are drawn about the factum of deposit of compensation in their names in the Bank and then the petitioner shall complete execution of work.
(iv) Once the work of drawing up of lines in the lands of the landowners/farmers is completed, the amount that is in deposit in the Bank shall be released in favour of the landowners/farmers. This process shall be adopted to all the lands of the farmers who are agitating.
(v) The deposit of compensation as directed supra would not mean that the farmers are not entitled to seek
48 enhancement of compensation in accordance with law. But that would not mean that the farmers would get a right to obstruct work on the ground that they are entitled to get enhanced compensation. It is a cause of action altogether different.
(vi) The aforesaid process and execution of work shall be completed within 3 months from the date of receipt of a copy of this order. In the event of failure of the petitioner to complete the project despite the aforesaid direction, the Corporation is at liberty to take any action against the petitioner as it deems fit. JUDGE
bkp CT:MJ
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.