IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD WRIT PETITION No.23014 OF 2014 (GM-RES) Between:
M/s Mangalore Constructions Company Bendoorwell, Kankanady Mangalore – 575 002 Rep. by its Prop: Hajee Hameed …Petitioner (By Sri M. Krishnappa., Advocate) And:
1. State of Karnataka Rep. by its Secretary to Government Irrigation Department (Minor Irrigation) M.S. Building, Bangalore – 560 001.
2. Chief Engineer Minor Irrigation (South) K.R. Circle, Bangalore – 560 001.
3. Executive Engineer Minor Irrigation Division Mangalore – 575 001.
4. Assistant Executive Engineer Sea Erosion Prevention Sub-division Minor Irrigation Department Mangalore – 575 001. …Respondents (By Smt. Niloufer Akbar, AGA) This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the impugned order dated 04.02.2013 vide Annexure-A passed by Respondent No.2 and also the impugned order dated 7.1.2014 at Annexure-P passed by the Respondent No.3 and etc.
This Writ Petition coming on for Preliminary hearing in ‘B’ Group this day, the Court made the following:
O R D E R This petition is directed against the order dated 04.02.2013 as per Annexure-A passed by the second respondent whereby the petitioner’s tender has been cancelled and Annexure-P dated 07.01.2014 whereby penalty has been imposed by respondent No.3 in respect of Annexure- A dated 04.02.2013.
2. Learned counsel for the petitioner has submitted that he will not press the first prayer on the ground that now they have allotted tender to other persons.
3. The petitioner is a Class-I PWD contractor. He was entrusted with the construction of vented dam at Mutlaje in Guttigaru village in Sullia Taluk for a sum of Rs.27,66,813.55/-. The work order was issued on 14.03.2007 with a condition that the petitioner shall take over the site and work should be completed within four months (excluding rainy season) from the date of handing over the site. The work site was handed over to the petitioner on 28.03.2007 and he commenced the work on 29.03.2007. After completion of the work order for about 30% to 40%, the petitioner raised the bill for part of the work completed in a sum of Rs.10,08,093/- as on the date of submission of bill. The 3rd respondent has not paid the entire amount claimed, but has paid a sum of Rs.9,58,093/- through cheque No.M211512 dated 13.6.2007.
4. Since the petitioner has not completed the entire work in view of the rain, the petitioner has sought for extension of time. The fourth respondent, by letter dated 10.10.2008 as per Annexure-H informed the petitioner that as the work is not completed, recommendation will be made for cancellation of the tender and also asked the petitioner to give reply to the said notice within three days. The petitioner by letter dated 14.10.2008 as per Annexure-J addressed to the fourth respondent has requested for clearing Rs.50,000/- from the first bill and asked for extension of time. After lapse of five years respondent No.2 has issued the impugned order dated 04.02.2013 canceling the tender allotted to the petitioner as per Annexure-A and by Annexure-P dated 07.01.2014, respondent No.3 has imposed penalty of Rs.8,37,126/- and directed the petitioner to pay the same within seven days from the date of the order. Being aggrieved by Annexure-P, petitioner is before this Court.
5. Learned counsel for the petitioner submits that the site has been handed over on 28.03.2007 and work commenced from 29.03.2007. After completion of 30%-40% work, he has raised the bill for Rs.10,08,093/- out of which Rs.9,58,093/- has been paid and remaining Rs.50,000/- has not been paid. In the meantime, there were rains near the construction site. Therefore, for completion of further work, he has given representation for extension of time. But he has not received any reply, hence, he could not proceed further.
Now the respondent without giving any opportunity to the petitioner for explanation, has imposed penalty of Rs.8,37,126/- and also forfeited his EMD amount. He further submitted that since they have not given any opportunity to the petitioner to explain that it is not the fault on the part of the petitioner for the delay in completion of work, he has assailed the impugned order.
6. Learned Government Advocate appearing for the respondents submitted that as per contract, he has to complete the work within four months. In spite of giving extension of time, he has not completed the work. Hence, they have rightly cancelled the tender. In respect of the penalty imposed, it is submitted that as per contract, he has not completed the tender work within four months. Therefore, Annexure-P has been passed.
7. It is not in dispute that the petitioner has been entrusted with work of vented dam at Mutlaje in Guttigaru village in Sullia Taluk for a sum of Rs.27,66,813.55/- and work order has been issued on 14.03.2007 and site has been handed over to the petitioner on 28.03.2007 and he has started work from 29.03.2007. The petitioner has completed about 30-40% of the work and has raised bill for Rs.10,08,093/- out of which for Rs.9,58,093/- cheque has been issued to the petitioner, remaining amount has not been settled. Since there was a rain, the petitioner has filed representation for extension of time on 14.10.2008 but he has not received any reply from the respondents. After lapse of five years respondent No.2 cancelled the tender vide Annexure-A dated 04.02.2013 and imposed the penalty of Rs.8,37,126/- without giving any notice to the petitioner. This action of the respondent is contrary to the principles of natural justice.
8. The respondent has unilaterally taken a decision by imposing penalty of Rs.8,37,126/-. Thus, the impugned order vide Annexure-P is contrary to the principle of natural justice. In view of the above, the Court is of the opinion that Annexure-P is unsustainable and the same is liable to be set aside.
9. Accordingly writ petition is allowed. The impugned order Annexure-P dated 07.01.2014 is quashed. The matter is remitted back to respondent Nos. 3 and 4 to reconsider the same after giving notice to the petitioner and after considering the reply and documents, if any, submitted by the petitioner, within five months from the date of receipt of a copy of this order.
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