IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE ALOK ARADHE WRIT PETITION No.38438/2016 C/W WRIT PETITION Nos.38439/2016 & 36182/2016 (GM, TEN) IN W.P.No.38438/2016 BETWEEN:
SRI G.A.DESAI S/O ADAPPA, AGED ABOUT 59 YEARS, R/AT OPP. POLICE STATION, VIJAYAPURA ROAD, SINDGI - 586 128 BIJAPUR DISTRICT.
... PETITIONER (BY SRI VITTAL SATTIGERI, ADVOCATE FOR SRI DEEPAK J., ADVOCATE) AND:
1. STATE OF KARNATAKA REP. BY ITS SECRETARY, DEPARTMENT OF MAJOR IRRIGATION, VIDHANA SOUDHA, BANGALORE - 560 001.
2. KARNATAKA NEERAVARI NIGAM LIMITED REP. BY ITS MANAGING DIRECTOR, DR. AMBEDKAR VEEDHI, COFFEE BOARD BUILDING, BANGALORE - 560 001.
3. THE CHIEF ENGINEER KARNATAKA NEERAVARI NIGAM LIMITED, IRRIGATION (NORTH ZONE), BELAGAVI - 577 428.
4. EXECUTIVE ENGINEER GLBC, DIVISION NO.3, KARNATAKA NEERAVARI NIGAM LIMITED, BILAGI, BILAGI TALUK, BAGALKOTE DISTRICT - 587 116.
... RESPONDENTS (BY SRI VIJAY KUMAR A.PATIL, AGA FOR R1 SRI PRASANTH B.R., ADVOCATE FOR SRI M.R.C.RAVI, ADVOCATE FOR R2-R4) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD:28.4.2016 BY R-3 VIDE ANNEXURE-C IN W.P.No.38439/2016 BETWEEN:
SRI M.B.KORI S/O BASAVARAJU, AGED ABOUT 42 YEARS, R/AT NO.96, OLD SBI ROAD, SINDGI-586 128, BIJAPUR DISTRICT.
... PETITIONER (BY SRI VITTAL SATTIGERI, ADVOCATE FOR SRI DEEPAK J., ADVOCATE) AND:
1. STATE OF KARNATAKA REP. BY ITS SECRETARY, DEPARTMENT OF MAJOR IRRIGATION, VIDHANA SOUDHA, BANGALORE - 560 001.
2. KARNATAKA NEERAVARI NIGAM LIMITED REP. BY ITS MANAGING DIRECTOR, DR. AMBEDKAR VEEDHI, COFFEE BOARD BUILDING, BANGALORE - 560 001.
3. THE CHIEF ENGINEER KARNATAKA NEERAVARI NIGAM LIMITED, IRRIGATION (NORTH ZONE), BELAGAVI - 577 428.
4. EXECUTIVE ENGINEER GLBC, DIVISION NO.3, KARNATAKA NEERAVARI NIGAM LIMITED, BILAGI, BILAGI TALUK, BAGALKOTE DISTRICT - 587 116.
... RESPONDENTS (BY SRI VIJAY KUMAR A.PATIL, AGA FOR R1 SRI PRASANTH B.R., ADVOCATE FOR SRI M.R.C.RAVI, ADVOCATE FOR R2-R4) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD:31.3.2016 BY R-3 VIDE ANNEXURE-C.
IN W.P.No.36182/2016 BETWEEN:
SRI NINGANAGOUDA B.DESAI S/O BEEMANAGOUDA DESAI, AGED ABOUT 42 YEARS, R/AT: HOUSE NO.D-105, ALMATTI DAM SITE, B.BAGEWADI TALUK, BIJAPUR DISTRICT-586 201.
... PETITIONER (BY SRI VITTAL SATTIGERI, ADVOCATE FOR SRI DEEPAK J., ADVOCATE) AND:
1. STATE OF KARNATAKA REP. BY ITS SECRETARY, DEPARTMENT OF MAJOR IRRIGATION, VIDHANA SOUDHA, BANGALORE - 560 001.
2. KARNATAKA NEERAVARI NIGAM LIMITED REP. BY ITS MANAGING DIRECTOR, DR. AMBEDKAR VEEDHI, COFFEE BOARD BUILDING, BANGALORE - 560 001.
3. THE CHIEF ENGINEER KARNATAKA NEERAVARI NIGAM LIMITED, IRRIGATION (NORTH ZONE), BELAGAVI - 577 428.
4. EXECUTIVE ENGINEER GLBC, DIVISION NO.3, KARNATAKA NEERAVARI NIGAM LIMITED, BILAGI, BILAGI TALUK, BAGALKOTE DISTRICT - 587 116.
... RESPONDENTS (BY SRI VIJAY KUMAR A.PATIL, AGA FOR R1 SRI PRASANTH B.R., ADVOCATE FOR SRI M.R.C.RAVI, ADVOCATE FOR R2-R4) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD:25.4.2016 BY R-3 VIDE ANNEXURE-D.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Sri Vittal Sattigeri, learned counsel for the petitioners.
Heard Sri Vijay Kumar A.Patil, learned Additional Government Advocate for respondent No.1.
Sri Prashanth B.R., learned counsel on behalf of Sri M.R.C.Ravi, learned counsel for respondent Nos.2 to 4 and perused the records.
In these petitions filed under Articles 226 and 227 of the Constitution of India, the petitioners inter alia seeks to issue a writ of certiorari to quash the orders dated 28.04.2016, 31.03.2016 and 25.04.2016 by respondent No.3 vide Annexures-C and D.
2. Facts giving raise to filing of these writ petitions are that the petitioners are Class-I contractors. The 4th respondent called tenders for providing CC lining in W.P.No.38438/2016 in Km No.19, 20, 21, 23, 24 and 25 of Bilagi Branch Canal (Package-X), in W.P.No.38439/2016 CC lining in OL-1, 1A, SOL-2, OL-
4, 5, 6 and 8 of Giragon Dy and in WP.No.36182/2016 CC lining to (a) KM No.1 of Gani Branch Canal and Easening of deepcut protion in KM 1 & 2 of Gani Branch Canal (b) KM No.4 of Gani Dy No.1 (c) KM No.1, 6, 7 and 8 of Gani Dy No.2 (d) KM No.3, 4, 5 of Girgaon Dy (Package No.28). The tender applications of the petitioners were accepted. The total cost of the tender work awarded to the petitioners in W.P.No.38438/2016 was Rs.2,78,83,912/-, in W.P.No.38439/2016 Rs.1,86,27,518/- and in W.P.No.36182/2016 Rs.341.01 lakhs, which were to be completed within a period of 120 days excluding monsoon and irrigation period.
Accordingly, the agreement was executed between the parties on 14.12.2006, 12.08.2010 and 17.10.2007 respectively.
3. The petitioners started the work in WP.No.38438/2016 on 01.03.2007, in WP.No.38439/2016 on 12.08.2010 and in WP.No.36182/2016 on 01.03.2008 and the scheduled date of completion of work was extended upto 15.07.2012 in WP.No.38438/2016 and 30.07.2008 in WP.No.36182/2016 with penalty and the period was not extended in the case of petitioner in W.P.No.38439/2016. The petitioners during the extended time completed the contract work for Rs.1,93,77,241.08/- in WP.No.38438/2016, Rs.1,12,13,1424.50/- in W.P.No.38439/2016 and Rs.1,28,93,340.09/- in W.P.No.36182/2016. Thereafter, the petitioners submitted a representation to 4th respondent to extend further more time to complete the tender work by pleading their difficulties. However, by an impugned order dated 28.04.2016, 31.03.2016 and 25.04.2016, the work awarded to the petitioners were rescinded and a decision was taken to call for fresh tender at the cost and risk of the petitioners.
4. When the matters were taken up today, the learned counsel for respondent Nos.2 to 4 submitted that in response to the order dated 28.04.2016, the fresh penalty has been imposed and the contract has been completed. It is further submitted that since the disputed questions of fact arise for determination in these petitions and the matters pertain to breach of contract, the petitioners ought to have availed the remedy provided to them under the agreement itself.
5. I have considered the submissions made by the learned counsel for respondent Nos.2 to 4 and perused the records.
6. From the perusal of records, it is evident that Clause-29 of the agreement executed between the parties provides for in house remedy, which reads as under:
“Clause 29-(a) If any dispute or difference of any kind whatsoever were to arise between the Executive Engineer / Superintending Engineer and the contractor regarding the following matters namely.
(i) The meaning of the specifications design, drawings and instructions herein before mentioned.
(ii) The quality of workmanship or materials used on the work and (iii) Any other question, claim, right, matter, thing whatsoever, in any way arising out of or relating to the contract, designs, drawings, specifications, estimates, instructions, or orders or those conditions or failure to execute the same whether arising during the progress of the work or after the completion, termination or abandonment thereof, the dispute shall, in the first place be referred to the Chief Engineer who has jurisdiction over the work specified in the contract. The Chief Engineer shall, within a period of Sixty days from the date of being requested by the contractor to do so, give written notice of his decision to the contractor. If the contractor is aggrieved by the decision of the Chief Engineer, or if the Chief Engineer fails to give written notice of his decision within the above said period of sixty days, the contractor may appeal to the Managing Director, KNNL, within 60 days from the receipt of written notice of the Chief Engineer’s decision of from the expiry of first named period of 60 days.
(b) Subject to the Managing Director’s decision on appeal and subject to other form of settlement hereafter provided, the Chief Engineer’s decision in respect of every dispute or difference so referred shall be final binding upon the contractor. The said decision shall forthwith be given effect to and contractor shall proceed with the execution of the work with all due diligence.
Remedy when Managing Director’s decision on appeal is not acceptable to contractor (c) in case the decision of the Managing Director is not acceptable to the contractor, he may approach the law courts at ……………………(*) for settlement of dispute after giving due written notice in this regard to the Managing Director within a period of ninety days from the date of receipt of the written notice of the decision of the Managing Director.
Time limit for notice to approach law court by contractor (d) If the Managing Director has given written notice to the contractor of his decision on his appeal and no written notice to approach the law court has been communicated to him by the contractor within a period of ninety days from receipt of such notice, the said decision shall be final and binding upon the contractor.
Time limit for notice to approach law court by contractor when decision is not given by Managing Director (e) If the Managing Director fails to give notice of decision within a period of his ninety days from the receipt of the contractor’s appeal, the contractor may within ninety days after the expiry of the above named period of ninety days approach the Law Courts at …………….(*) giving due notice to the Managing Director.
[Note: (*) [In sub clauses (c) and (e) specify the place where the Court under whose jurisdiction the work is situated/is located] (f) Whether the claim is referred to the Chief Engineer or Managing Director to the Law courts, as the case may be, the contractor shall proceed to execute and complete the works with all due diligence pending settlement of the said dispute or differences.
Obligations of the Executive Engineer and contractor shall remain unaltered during considerations of dispute (g) The reference of any dispute or difference to the Chief Engineer or Managing Director or the Law Court may proceed not withstanding that the work shall then be or be alleged to be complete, provided always that the obligations of the Executive Engineer and tie contractor shall not be altered by reason of the said dispute or difference being referred to the Chief Engineer or Managing Director or the Law Court during the progress of the works.
Aggrevated Contractor to Approach Civil Court (h) It is clearly understood and agreed upon by both the parties that no part of the above clause shall be construed to be an Arbitration Clause. In the event of any dispute or (difference arising between the parties to this contract; upon exhausting the remedies under (Clauses 29(a) to (g); the only remedy available shall be to approach the jurisdictional Civil Court by filing a suit in accordance with law”.
7. In view of the aforesaid remedy provided to the petitioners under the agreement, the petitioners ought to have resorted to the remedy provided to them under Clause-29 of the agreement. Instead of availing the said remedy, the petitioners have rushed to this Court.
8. The Hon’ble Supreme Court in the case of ‘PimpriChinchwad Municipal Corporation and Others Vs. Gayatri Construction Company and Another’, (2008) 8 SCC 172, has held that whether the agreement provided for in house remedy of representation for settlement of disputes, the High Court ought not to have entertained the petition and should relegate the petitioners to avail other remedy.
9. In the instant case, in the facts of the case and in view of the relegation of the case of the Hon’ble Supreme Court and taking into the fact that the matter pertains to breach of contract, which involves adjudication of the disputed questions of fact, which cannot be adjudicated in these writ petitions, I deem it appropriate to relegate the petitioners to an alternative remedy, which may be provided to them under the law.
10. Accordingly, it is directed that, in case, the petitioners avail an alternative remedy provided to them under Clause-29 of the agreement, the ad-interim orders dated 19.08.2016, 26.07.2016 and 01.07.2016 respectively, granted by this Court shall remain in force for a period of 30 days from today only. It is made clear that this Court has not expressed any opinion on the merits of the case.
Accordingly, with the aforesaid observations, the writ petitions are disposed of.
Sd/- JUDGE PB