IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF MAY, 2019 PRESENT THE HON’BLE MR.JUSTICE ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR.JUSTICE P.S.DINESH KUMAR WRIT PETITION NO.13148 OF 2018 (GM-MM-S) BETWEEN:
SRI P.L.KAMBALE AGED 44 YEARS SAND MINING CONTRACTOR R/O HUNGUNDA HUNGUNDA TALUK BAGALKOT DISTRICT – 587 112 (BY SMT.SHALINI PATIL, ADVOCATE) AND:
1. THE EXECUTIVE ENGINEER PUBLIC WORKS PORTS AND INLAND WATER TRANSPORT DEPARTMENT BAGALKOT DIVISION BAGALKOT – 587 112 2. ASSISTANT EXECUTIVE ENGINEER PUBLIC WORKS PORTS AND INLAND WATER TRANSPORT DEPARTMENT JAMAKHANDI SUB-DIVISION JAMAKHANDI – 587 112 3. THE DEPUTY COMMISSIONER BAGALKOT DISTRICT BAGALKOT – 587 112 (BY SHRI VIKRAM HUILGOL, HCGP) ... PETITIONER ... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI QUASHING THE ORDERS DATED 21.10.2016 AND 22.10.2016 PASSED BY THE FIRST RESPONDENT AT VIDE ANNEXURES-H AND H1 AND ETC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, CHIEF JUSTICE MADE THE FOLLOWING:
ORDER By this petition under Article 226 of the Constitution of India, a writ of mandamus is prayed for quashing the orders dated 21st October 2016 and 22nd October 2016.
2. The writ petition has been filed on 23rd March 2018.
Without going into the aspect of delay, we have considered the petition on merits.
3. Both the impugned orders are more or less identical.
The work orders were issued by the first respondent to the petitioner authorizing the petitioner to extract sand from two blocks in Krishna river bed and for transporting the sand to the identified stockyard. By the impugned orders, both the work orders, which are the subject matter of this petition issued to the petitioner, have been terminated and orders have been passed for forfeiture of the security deposits paid by the petitioner pursuant to the contracts.
4. The submission of the learned counsel appearing for the petitioner is that the petitioner has brought on record the reasons as to why the petitioner could not transport the excavated sand to the identified stockyard. The learned counsel invited our attention to the correspondence made by the petitioner starting from the letters dated 28th May 2016 addressed to the concerned Assistant Executive Engineer. By inviting our attention to the letter dated 28th May 2016, the learned counsel would submit that the Maharashtra Government released two TMC of water and considering the fact that monsoon was approaching very fast, the sand was not transported to the identified stockyard and was stored on the sites. She pointed out that willingness was always shown by the petitioner to transport the sand to the stockyard as and when required for after the rainy season as per the directions which may be issued by the Assistant Executive Engineer.
5. The learned counsel for the petitioner also pointed out the response of the petitioner to the notice issued by the Assistant Executive Engineer in which the petitioner assured the Assistant Executive Engineer to transport the sand to the identified stockyard. She pointed out that the sand was not transported to the stockyard due to heavy rain and as the conditions were beyond the control of the petitioner. Her submission is that the petitioner has committed no offence and in any case, there is no reason to forfeit the security deposits.
6. The learned HCGP relied upon the objections filed by the State Government and supported the impugned orders.
7. We have given careful consideration to the submissions.
8. Condition No.15 of the contract which admittedly binds the petitioner reads thus:
“The successful tenderer should follow the procedures of Government orders of sand mining and the directions of Departmental Officers, if he fails or if he involved in illegal sand mining or sand transportation, his tender will be cancelled, and the security deposit and unbalanced tender amount will be forfeited to the Government”.
9. There is another material condition, being Condition No.40, which reads thus:
“The successful bidder should transport the sand from the sand block to the particular stockyard. At the time execution if the successful bidder failed to transport sand to stockyard as per the instructions of the Assistant Executive Engineers, his tender will be cancelled and the security deposit and the unbalanced tender amount will be forfeited”.
10. It is not in dispute that on 28th May 2016, the petitioner himself addressed a letter to the Assistant Executive Engineer in relation to both the blocks admitting that the sand excavated from the river bed was not transported to the identified stockyard and the sand was stacked in some private land near the river bank. In the letter, the petitioner showed willingness to transport the sand to the stockyard as and when required.
11. There were three notices admittedly served by the Assistant Executive Engineer to the petitioner on 1st June 2016, 10th June 2016 and 15th June 2016 respectively. The first two notices gave time of four days and three days respectively to the petitioner to shift the sand to the identified stockyard. The third notice again called upon the petitioner to shift the sand to the identified stockyard. Thus, more than sufficient time was granted to the petitioner to shift the sand in terms of the directions issued by the Assistant Executive Engineer. On 27th June 2016, the Additional Deputy Commissioner of the concerned area conducted a joint inspection which confirmed the illegal stacking of sand by the petitioner. That is how on 11th July 2016, the Executive Engineer issued a show-cause notice to the petitioner. Even in the reply dated 28th July 2016 to the said show cause notice, the petitioner admitted that he had stacked the sand on the river bed with prior permission of the Authorities.
12. Thus, on admitted facts, this is a clear case where in breach of the Condition No.15 of the Contracts, the petitioner did not follow the orders passed by the Departmental Officers. Therefore, by invoking Condition No.15, the State Government was entitled to cancel the contracts and pass orders of forfeiture. Even as per Condition No.40 of the contracts, the petitioner was duty bound to transport the sand to the stockyard as per the instructions of the Assistant Executive Engineer. The admitted position is that he failed to do so. That is how under the Condition No.40, the State Government was well within its power to cancel the contracts and forfeit the security deposits. Therefore, we find no error in the impugned orders. There is no merit in the petition and the same is rejected.
Sd/- CHIEF JUSTICE Sd/- JUDGE AHB