IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 07th DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO.50308 OF 2019 (GM - RES) BETWEEN:
Sri.Ashok Gudigar S/o Sri.Chikkanna Gudigar, Aged about 55 years, R/a No.9, MIG, KHB Colony, Bidadi, Ramanagara District – 560 109.
(By Prof. Ravivarma Kumar, Senior Counsel for Smt. G. Sharada Bai, Advocate) AND:
1. The Bengaluru Development Authority Represented by the Commissioner, T.Chowdiah Road, Kumara Park West, Bengaluru – 560 020.
... Petitioner 2. The Executive Engineer Infrastructure Division II, Bengaluru Development Authority, T.Chowdiah Road, Kumara Park West, Bengaluru – 560 020.
… Respondents (By Sri. D.N. Nanjunda Reddy, Senior Counsel for Sri. K. Krishna, Advocate) **** This writ petition is filed under Articles 226 and 227 of the Constitution of India praying to direct the respondent authority-Bengaluru Development Authority to permit the petitioner complete the entire work of sculpting that remains to be done on the Monolithic Veeragallu before erecting the same in the National Military Memorial (NMM) in Indira Gandhi Musical Fountain Park in Bengaluru, after declaring the letter No.BemAPraa/KaaA (MuuSauV)/201/2019-20 dated 19.10.2019 vide Annexure – A issued by respondent No.2 as being inoperative and void and etc.
This writ petition coming on for preliminary hearing this day, the Court made the following:
ORDER Petitioner who is a sculptor is before this Court for writ of mandamus directing respondent-Bengaluru Development Authority to complete the entire work of sculpting that remains to be done on the Monolithic Veeragallu before erecting the same in the National Military Memorial (NMM) in Indira Gandhi Musical Fountain Park in Bengaluru, after declaring the letter No.BemAPraa/KaaA (MuuSauV)/201/ 2019-20 dated 19.10.2019 vide Annexure – A issued by respondent No.2 as being inoperative and void and writ of mandamus directing the respondent authority to take into consideration the escalation of cost of the project as set out by the petitioner in his various representations referred to in the writ petition and appropriately pay the petitioner the revised cost of the project and to consider all the representations written by the petitioner to the respondents and take steps to address the concerns therein.
2. It is the specific case of the petitioner that petitioner is a well known sculptor known for his works installed at various places within India as well as outside India. He specializes in making statues out of sandalwood, stone, metal and fiberglass. He is the recipient of the National Award for the ‘Venugopala’ statue for his Surahonne wood work (1992). He also received the State Award for his wood work for ‘Rama Pattabhisheka’ (1989) among several other awards.
3. It is further contended that respondent authority issued a tender notification on 26.11.2010 for carving of a monolithic structure, Veeragallu in the National Military Memorial (NMM) in Indira Gandhi Musical Fountain Park in Bengaluru. Accordingly, the petitioner applied for tender and he was selected to do the work. The petitioner and his team worked diligently on carving the stone at the quarry. However, there were several complications involved with respect to the turning/moving of the stone. The respondents also delayed the finalization of the transport, tender resulting in enormous financial losses and labour costs to the petitioner and a huge waste of valuable time of the artist. Respondent No.2 issued letter dated 19.10.2019 to the petitioner regarding the erection of unfinished structure which is yet to be carved out by the petitioner. Inspite of repeated representations by the petitioner seeking stay of the erection of structure was willfully ignored by the respondents. Now, without notice to the petitioner, the respondent authority has started making arrangements to erect the structure. Therefore, the petitioner is before this Court for the relief sought for.
4. When the matter came before this Court on 04.11.2019, Prof. Ravivarma Kumar, learned Senior Counsel for the petitioner contended that the work order for tender work for quarrying and carving of Monolithic Veeragallu stone for National Military Memorial at Bengaluru came to be issued on 04.05.2011 as per the Annexure-F and was extended from time to time. The tentative billing schedule was, payment of 40% towards quarrying, cutting/splitting, handling and stacking; 25% towards carving as per drawing with one face flat for transportation, 25% towards carving flat portion to the shape as per the drawing at site of erection and 10% towards finishing touches to the stone after erection. It was further contended by the learned Senior Counsel that the work of only quarrying, cutting/splitting, handling and stacking and carving as per drawing with one face flat for transportation, has been completed. The carving flat portion to the shape as per the drawing at site of erection is yet to be completed and therefore, the question of finishing touches to the stone after erection would not arise at all.
5. At this stage, Sri Krishna, learned counsel for the Bengaluru Development Authority submits that already the Veeragallu stone has been erected. He submits that the entire amount due to the petitioner, in terms of the agreement entered into between the parties has already been paid to the petitioner. In view of the same, this Court directed the respondent - Bengaluru Development Authority to maintain status quo in respect of erecting the Veeragallu stone, as on that day i.e. on 04.11.2019 at 5.10 pm, that is how the matter is posted today.
6. I have heard Prof. Ravivarma Kumar, learned Senior Counsel for the petitioner and Sri.D.N.Nanjunda Reddy, learned Senior Counsel for respondent authority. The officers of respondent authority namely Sri.Vinayaka.G Sugur, Superintendent Engineer, Sri.Niranjan, Executive Engineer and Sri.Rangaswamy, Assistant Engineer are present before this Court. On instructions, learned Senior Counsel for the respondents submits that as per the contract entered into between the parties, the petitioner has already completed 90% of work i.e. quarrying, cutting/splitting, handling and stacking and carving as per drawing with one fact flat for transportation and carving flat portion to the shape as per the drawing at site of erection. Only 10% of work has to be completed i.e. finishing touches to the stone after erection. On instructions, the learned Senior Counsel also submits that 90% of work has already been completed and 90% of payment has also been paid to the petitioner. Only remaining 10% of work has to be completed. The learned senior counsel for the petitioner submits that still the petitioner is entitled for the amount due i.e., Rs.1,05,71,200/- as per the demand made by his representation dated 21.06.2013 from the Bengaluru Development Authority.
7. Sri.D.N.Nanjunda Reddy, learned Senior Counsel for respondents on instructions submits that certain payments have already been made to the petitioner. As on today, the Bengaluru Development Authority is due to the petitioner a sum of Rs.9,61,330/- only to the remaining 10% of the work (i.e, towards finishing touches to the stone after erection) and the same has to be paid to the petitioner by the Bengaluru Development Authority. The said submission is placed on record.
8. Prof. Ravivarma Kumar, learned senior counsel appearing for the petitioner, on instructions submits that the height of the Veeragallu is 78 feet 9 inches and it is very difficult for giving finishing touches to the erected Veeragallu at that level of height.
9. Sri D.N. Nanjunda Reddy, learned senior counsel appearing for the respondents, on instructions submits that BDA will provide all facilities to lift the tools and machineries of the petitioner without any disturbance for the work of finishing touches to the erected Veeragallu and release 50% of the amount towards 10% of the work to be completed, without any inconvenience to the petitioner within a period of four days.
10. The said submissions are placed on record.
11. Learned senior counsel appearing for the petitioner also submitted that the petitioner has claimed additional amount of Rs.1,05,71,200/- as per Annexure-L towards price escalation for excavation, machinery, rent, labour costs etc., The said document is disputed by the learned senior counsel for the respondents and submits that it is one sided calculation. In view of the above, after completion of the entire work, if there is any dispute with regard to payment of the amount as claimed in the said Annexure-L, it is for the petitioner to work out his remedy before the competent Civil Court, in accordance with law.
12. Learned senior counsel for the petitioner, on instructions submits that the respondent-BDA has already encashed the bank guarantee of Rs.4,70,455/-. The same is disputed by the learned senior counsel for the respondent- BDA and on instructions from Sri Niranjan, the Executive Engineer of the BDA, submits that the said amount is not yet encashed. He further submits that in case the submission made by him on instructions is found to be wrong, the respondent - BDA will take necessary steps to restore the amount to the bank.
13. The said submission is placed on record.
14. Apart from the respondent – BDA paying 50% of the amount towards 10% of the work to be completed, within four days as stated supra, after completion of the finishing touches to the erected Veeragallu, the respondent - BDA shall ensure payment of balance 50% of the amount towards 10% of the work stated supra.
15. After completion of the entire work, the respondents shall also ensure return of bank guarantee of Rs.4,70,455/- given by the petitioner.
16. The respondent – BDA shall provide all facilities to lift the tools and machineries of the petitioner and also provide suitable scaffolding and ensure safety of the petitioner and his team while working for the finishing touches to the erected Veeragallu.
17. This Court hopes and trusts that the BDA will not give room for any further litigation.
Accordingly, writ petition is disposed off with the above observations.
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