IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.19510 OF 2013 (GM-RES) BETWEEN:
SRI. B.K. LINGAPPA S/O LATE KENGEGOWDA AGED ABOUT 70 YEARS R/O SHANKARIPURAM HASSAN-573201.
(BY SRI. VINAYAKA B, ADV., FOR SRI. ABHIJIT HARANAHALLI, ADV.,) AND:
1. THE STATE OF KARNATAKA PUBLIC WORKS DEPARTMENT REPRESENTED BY ITS SECRETARY … PETITIONER M.S.BUILDING, BANGALORE-560001.
2. THE CHIEF ENGINEER NATIONAL HIGHWAY SUB-DIVISION PUBLIC WORKS DEPARTMENT K.R.CIRCLE, BANGALORE-560001.
3. THE EXECUTIVE ENGINEER NATIONAL HIGHWAY SUB-DIVISION PUBLIC WORKS DEPARTMENT URVA, MANGALORE-575006.
4. THE TAHSILDAR HASSAN TALUK HASSAN-573201.
… RESPONDENTS (BY SMT. NILOUFER AKBAR, AGA FOR R1 & R4 R2 & R3 SERVED AND UNREPRESENTED) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ENDORSEMENT DATED 18.1.2013 ISSUED BY THE 4TH RESPONDENT TAHSILDAR VIDE ANNEXURE-A AND THE COMMUNICATIONS DATED 5.3.2012 AND 22.2.2012 ISSUED BY THE 2ND AND 3RD RESPONDENTS RESPECTIVELY VIDE ANNEXURE-A1 & A2 AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Sri. Vinayaka B, learned counsel for Sri. Abhijit Haranahalli, learned counsel for the petitioner.
Smt.Niloufer Akbar, learned Additional Government Advocate for respondent Nos.1 and 4.
None for respondent Nos.2 and 3.
The petition is admitted for hearing. With the consent of learned counsel for the parties, the same is heard finally.
2. In this petition, the petitioner inter alia seeks quashment of the impugned endorsement dated 18.01.2013 issued by respondent No.4 - Tahsildar as well as communications dated 05.03.2012 and 22.02.2012 issued by respondent No.2 and respondent No.3 respectively.
3. In order to appreciate the petitioner’s challenge to the impugned order, few facts need mention which are stated infra:
The petitioner was awarded the contract for reconstruction of the bridge across Yagachi River in KN 193 of NH 48. The value of the contract was Rs.19,90,635/-. The site was handed over to the petitioner on 16.09.1986 and the due date for completion of the work was 15.12.1987. It is the case of the respondents that the petitioner did not complete the work awarded to him within the time limit. Thereafter, by communication dated 16.03.1989 the contract awarded to the petitioner was rescinded and notice was given to the petitioner that balance work shall be completed at the risk and cost of the petitioner. Thereafter, respondent No.2 issued a notice to the petitioner dated 26.02.1990 to pay a sum of Rs.4,00,383/- towards the probable extra cost due to balance work to be executed by other agency and to pay a sum of Rs.3,23,755/- towards non return of excess materials like cement and steel issued by the department to the petitioner.
4. Being aggrieved, the petitioner filed a civil suits namely, O.S.Nos.138/1995 and 141/1995, which were dismissed vide judgment dated 26.08.2006. Thereafter, respondent Nos.2 and 3 approached the Tahsildar to initiate the proceedings for recovery of the amount in question as arrears of land revenue. Thereupon, Tahsildar issued a notice to the petitioner on 28.12.2012. In the aforesaid factual background, the petitioner has approached this Court.
5. Learned counsel for the petitioner submitted that there has been no adjudication of the liability of the petitioner before recovering the amount from him as arrears of land revenue.
6. On the other hand, learned Additional Government Advocate was unable to point out from the record that there has been any adjudication of liability of the petitioner before the Tahasildar had initiated the proceedings for recovery. It is well settled in law that until and unless the liability of the petitioner to pay a particular amount is adjudicated in accordance with law, no recovery can be made from the petitioner. In the instant case, admittedly, there has been no adjudication of liability of the petitioner to pay the amount in question and straight away demands have been made and notice has been issued by respondent No.4 – Tahasildar seeking recovery of the amount in question from the petitioner. The aforesaid course of action is impermissible in law. In this connection, reference may be made to the decision of the Hon’ble Supreme Court in ‘STATE OF KARNATAKA VS. SHREE RAMESHWARA RICE MILLS, THIRTHAHALLI’, AIR 1987 SC 1359.
7. It is also pertinent to note that instant case is not a recovery of liquidated damages from the petitioner. Therefore, for this reason also, respondents have no authority in law to recover the amount in question without any adjudication of the liability of the petitioner.
8. In view of the preceding analysis, the impugned endorsement dated 18.01.2013 issued by respondent No.4 as well as communications dated 05.03.2012 and 22.02.2012 are hereby quashed.
9. Needless to state that respondents shall be at liberty to take action against the petitioner, if so advised, in accordance with law.
Accordingly, the writ petition is disposed of.
Sd/- JUDGE dn/-