IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF APRIL 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO. 60188/2014 (GM-RES) BETWEEN:
R. FAYAZ AHAMED S/O GAFFER HUSSAIN, AGED ABOUT 49 YEARS, NO.15, OLD NO.37, E NO.9TH STREET, HKP ROAD, BANGALORE-560 051.
... PETITIONER (BY SRI. S. VIVEKANANDA, ADV. FOR SMT. V. GANGABAI, ADV.) AND 1. THE EXECUTIVE DIRECTOR BANNERGHATTA BIOLOGICAL PARK, BANGALORE-560 083.
2. STATE OF KARNATAKA VIDHANA SOUDHA, BANGALORE-560 001 REPRESENTED BY ITS CHIEF SECRETARY ... RESPONDENTS (BY SRI. M. VINAYAKEERTHY, ADV. FOR R1 SRI. Y. D. HARSHA, AGA FOR R2) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE R-1 TO REFUND THE EMD DEPOSIT AMOUNT OF RS.13,02,000/- [RUPEES THIRTEEN LAKHS TWO ONLY] TO THE PETITIONER; ORDER FOR COMPENSATION / DAMAGES AS THIS HON'BLE COURT DEEMS FIT IN THE CIRCUMSTANCES OF THE CASE.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Sri. S. Vivekananda, learned counsel for the petitioner.
Sri. M. Vinayakeerthy, learned counsel for the respondent No.1 and Sri. Y. D. Harsha, Additional Government Advocate for respondent No.2.
2. Petition is admitted for hearing. With consent of the parties, same is heard finally.
3. In this petition, the petitioner inter alia seeks a writ of mandamus directing the respondent No.1 to refund the earnest money deposit of Rs.13,02,000/- to the petitioner.
4. Facts giving rise to filing of the petition briefly stated are, for the tender quoted by the respondent No.1 for supply of beef to captive animals at Bannerghatta Biological Park for the year 2010-11, the petitioner was allotted the contract. Thereupon, an agreement was executed between the petitioner and the respondent No.1 on 16.07.2010 and a work order was issued to the petitioner. The petitioner supplied the beef and thereafter three cubs died. A show-cause notice was issued to the petitioner on 05.10.2010 and a complaint was filed against him on 05.10.2010 itself. The petitioner submitted his reply on 06.10.2010. Thereafter the petitioner submitted a representation to the respondent No.1 on 03.03.2012 to refund the amount of security deposit. However, no action in the matter was taken in the aforesaid factual background. Hence the petitioner has approached this Court.
5. Learned counsel for the petitioner submitted that the inaction on the part of the respondent No.1 in not refunding the security deposit to the petitioner, is per se and arbitrary.
6. On the other hand, learned counsel for the respondents have submitted that since the criminal case is pending against the petitioner, no decision has been taken to refund the amount of security deposit.
7. I have considered the submissions made by the learned counsel for the parties.
8. Clause 33 and 34 of the agreement executed between the parties reads as under:
(33) If due to infections/disease/inferior quality of supply or due to short supply, there happens to be any death or ailment of any zoo animals, the loss thereof shall be determined by the Executive Director, is liable to be recovered from the contractor and his agreement will be terminated and the EMD will be forfeited to ZAK.
(34) For any infringement of the conditions laid down in the agreement, the contractor is liable to pay the penalty of suitable amount as determined by the Executive Director & Conservator of Forests, Bannerghatta Biological Park. The penalty shall be paid by the contractor within seven days. In case of severe infringements, the Executive Director reserves the right to cancel the agreement. In case of cancellation of the contract the security deposit is liable to be forfeited. Alternate arrangement will be made to get the supplies either in the open market or by calling fresh quotations at the risk and cost of the original tenderer.
9. On perusal of the aforesaid clauses of the agreement, it is evident that whether or not there has been any infringement of the terms and conditions of the agreement or the supply made by the petitioner has been of inferior quality or infectious, has to be adjudicated by the Executive Director and Conservator of Forests, Bannerghatta Biological Park. Admittedly, aforesaid adjudication has not taken place. Therefore, in the fact situation of the case, I deem it appropriate to direct the Executive Director and Conservator of Forests, Bannerghatta Biological Park to afford an opportunity to the petitioner and thereafter take a decision by a speaking order with regard to the refund of earnest money deposit made by the petitioner, within a period of three months from today.
10. With the aforesaid direction, the writ petition stands disposed of.
Sd/- JUDGE RD