IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF DECEMBER , 2017 BEFORE THE HON’BLE MR. JUSTICE A S BOPANNA WRIT PETITION No.11331/2017 (GM-TEN) BETWEEN:
M/S. SANJAY MARKETING AND PUBLICITY SERVICES NO.131, 5TH MAIN, 35TH CROSS, 4TH T BLOCK, JAYANAGAR, BANGALORE-560 041 BY ITS PROPRIETOR R NAGARAJ ... PETITIONER (BY SRI D N NANJUNDA REDDY, SR. COUNSEL FOR SRI REUBEN JACOB, ADV.) AND:
1. THE STATE OF KARNATAKA BY ITS PRINCIPAL SECRETARY, RURAL DEVELOPMENT & PANCHAYATH RAJ DEPARTMENT, GOVT. OF KARNATAKA, M.S.BUILDING, DR.AMBEDKAR VEEDHI, BANGALORE-560 001.
2. THE COMMISSIONER RURAL DRINKING WATER AND SANITATION DEPARTMENT, RURAL DEVELOPMETNT & PANCHAYATH RAJ DEPARTMENT, CAUVERY BHAVAN, K.G.ROAD, BANGALORE-560 009.
3. THE CHIEF ENGINEER RURAL DRINKING WATER AND SANITATION DEPARTMENT, RURAL DEVELOPMENT & PANCHAYATH RAJ DEPARTMENT, CAUVERY BHAVAN, K.G.ROAD, BANGALORE-560 009.
(BY SRI A M SURESH REDDY, AGA.) ... RESPONDENTS THIS PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, WITH A PRAYER TO CALL FOR THE RECORDS AND DIRECT THE RESPONDENT TO CONSIDER THE REPRESENTATION DATED 17.12.2016 MADE BY THE PETITIONER AT ANNEXURE-J AND FURTHER BE PLEASED TO DIRECT THE RESPONDENTS TO RELEASE PAYMENTS AS AGAINST THE BILL ALONG WITH COVERING LETTER DATED 09.09.2016 AS PER ANNEXURE-F.
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioner is before this Court seeking issue of mandamus to direct the respondents to consider the representation dated 17.12.2016 as at Annexure-J and direct the respondents to release the payment against the bill along with the covering letter dated 09.09.2016 as at Annexure-F to the petition.
2. The fact that the petitioner was awarded the work for providing and fixing of advertisement hoardings along with Vinyl Sheet at selected Gram Panchayat locations in Karnataka through the tender proceedings dated 04.03.2015 is not in dispute. The said hoardings were to be erected in the Panchayat Divisions. The petitioner pursuant to the work order being issued has erected the hoardings in 400 locations for which the work order has been issued. Since according to the petitioner the work to the said extent had been completed and the Vinyl sheet could not be fixed as the approval had not been made by the respondents, had submitted the bill through the letter dated 09.09.2016 as at Annexure-F to the petition. Since the same has not been considered and paid to the petitioner , the petitioner is before this Court.
3. The respondents have filed their objections.
Insofar as the erection of 400 hoardings, there is no serious dispute. However, what is sought to be contended is that the work as entrusted has not been completed by fixing the Vinyl sheets on the hoarding and in that light the claim made on the entire amount of Rs.3,93,60,000/- is not justified. It is further contended that the bill as submitted is not in the manner as provided under the tender documents, but has been directly dispatched to the Chief Engineer which is not justified. Hence, it is contended that the mandamus to pay the amount as prayed in the petition is not sustainable.
4. The petitioners have filed their rejoinder to the petition. Along with the rejoinder, the nature of the correspondence exchanged and a copy of the office note in the file is produced. Hence, it is contended that the Vinyl sheet has not yet been fixed since the design has not been approved by the Minister concerned and therefore the entire work though not completed, they cannot be denied payment for what has been completed.
5. Having heard the learned senior counsel for the petitioner and the learned Government Advocate, I have perused the petition papers.
6. As noticed from the pleadings, insofar as the erection of the hoardings, there appears to be no serious dispute inasmuch as the respondents have only contended that the work done by the petitioner cannot be considered as complete as the Vinyl sheets have not been fixed since the contract work was for the entire work. In that regard, what is contended is that in such circumstance the bill for the entire amount as has been indicated through Annexure-F could not have been submitted. If the said contention is taken note, it cannot be considered as a disputed question relating to the very contractor about the extent of work having been performed. However, the contention as put forth is that the Vinyl sheet which is also a part of the work has not yet been fixed and therefore the entire amount could not have been claimed in that regard.
7. A perusal of the document at Annexure-R produced along with the rejoinder would disclose that in order to approve the design on the Vinyl sheet, the same has been taken into consideration by the respondents and keeping in view the manner in which the photographs can be displayed in such hoardings based on the restrictions that are in place, the same has been put up to the Minister. However, the same has not been finalized.
8. If that be the position, when the design for the Vinyl sheet has not been approved by the respondents and in that circumstance when the hoardings have been erected by the petitioner involving the expenses for the same, the respondents would not be justified in withholding the amount even in respect of the completed work. The contention as put forth that the bill submitted for the full amount is not sustainable and therefore payment is not made is also not acceptable inasmuch as it was open for the respondents to exclude the portion of the amount required for fixing the Vinyl sheet and on verifying as to whether the work in respect of the hoarding has been completed and the proportionate amount to that extent was required to be considered and paid.
9. Further, though the learned Government Advocate contends that the bill as addressed to the Chief Engineer through the communication dated 09.09.2016 would not be justified, the bill as received was to be processed at the end of the respondents. Therefore, even on receiving the said indication in the bill, it was open for the Chief Engineer to place it before the concerned Officer to take note of the same and process for further consideration in that regard.
10. Therefore in that circumstance having taken note that the petitioner is entitled to receive the amount, if the erection of the hoarding is to the satisfaction of the respondent, a direction is necessary to be issued to the respondents to take note of the representation dated 17.12.2016 and take a decision in that regard. To that extent it is made clear that in respect of the 400 locations if the hoardings have been erected, the report shall be secured from the Officers concerned and to that extent towards erection of the hoarding, the amount be bifurcated and the same be paid to the petitioner.
11. Insofar as the remaining part of the work with regard to the Vinyl sheets being fixed on the hoarding, to that extent the respondents would be entitled to withhold the amount and pay the same subsequent to the work being completed. The consideration in that regard be made by the respondents as expeditiously as possible, but a decision in any event shall be taken with regard to the quantum of the amount payable to the petitioner within four weeks from the date on which a copy of this order is furnished. On the amount being quantified, further steps be taken to pay the amount to the petitioner within the outer limit of three months.
The petition is accordingly disposed of.
Sd/- JUDGE akc/bms