IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MRS.JUSTICE S.SUJATHA W.P.No.53446/2014 (GM – KEB) BETWEEN :
M/s VINAYAKA ENTERPRISES BY ITS PROPRIETOR SRI G.N.SRINIVAS, S/O SRI G.K.NAGARAJA IYER, AGED ABOUT 44 YEARS, OFFICE AT NO.3002/1, "SRINIVASA NILAYA"
2ND CROSS, NEW EXTENSION, KOLAR-563 101 ...PETITIONER (BY SMT.DIVYA KRISHNA, ADV.) AND :
1 . BANGALORE ELECTRICITY SUPPLY COMPANY LIMITED REP BY ITS MANAGING DIRECTOR K R CIRCLE, BANGALORE-560 001 2 . THE EXECUTIVE ENGINEER (ELE) OPERATIONS & MANAGEMENT DIVISION, BESCOM, KOLAR-563 101 3 . GENERAL MANAGER (ELE) COMMERCIAL, OPERATIONS & MAINTENANCE DIVISION, BESCOM, KOLAR-563 101 4 . GENERAL MANAGER (ELE) TECHNICAL AUDIT & QUALITY CONTROL DIVISION, BESCOM, KOLAR-563 101 …RESPONDENTS (BY SRI S.SRIRANGA, ADV.) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER OF THE R-1 DATED 09.06.2014 VIDE ANNEXURE-X.
THIS PETITION COMING ON FOR HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioner has challenged the order of the 1st respondent dated 09.06.2014 whereby the request of the petitioner for release of pending bills towards the work claims said to have been carried out during the period 2006-2009 has been rejected inter alia challenging the investigation reports issued by the 1st respondent dated 12.1.2009 and 17.4.2010 at Annexures-B and K respectively.
2. The petitioner is claiming to be a Class-I Electrical Contractor and is licensed to carry out electrical maintenance and repair works throughout the State of Karnataka. The petitioner was awarded several work contracts for maintenance and repairs by the 1st respondent company during the period 2006 to 2009. About 121 work contracts were awarded out of which it appears the payment towards 29 work contracts carried out by the petitioner has not been made, on the allegation of scam reported during the said period and said to have been established as per the report dated 12.01.2009 and 17.04.2010.
3. This is the third round of litigation as far as the petitioner seeking relief relating to the payment withheld by the respondent-Authorities for the 29 works carried out during the said period is concerned. In the first round of litigation in W.P.Nos.18055-56/2010, this Court vide order dated 11.4.2012 directed the Managing Director of the respondent No.1 company to consider the representation submitted by the petitioner and take a decision in accordance with law, in view of the submissions made by the learned counsel appearing for the respondent company that the representation submitted by the petitioner has been seized of by the Managing Director and the same shall be examined in accordance with law without being in any manner influenced by the findings recorded by the Executive Engineer. The order passed by the Managing Director of the 1st respondent company was the subject matter of W.P.No.10918/2013 and the same came to be disposed of on 18.02.2014 observing that the said order was not in consonance with the directions issued by this Court in the earlier round of litigation. Further directions were issued by this Court to reconsider the matter, pursuant to which, the order impugned has been passed. Hence, this writ petition.
4. Learned counsel Mrs.Divya Krishna appearing for the petitioner would submit that the report dated 12.1.2009 is the unilateral report, of which the petitioner was oblivious. On the information sought under the RTI Act inasmuch as the details of the said inspection report, it was conveyed vide order dated 22.07.2010 (Annexure-M1) that no such inspection was conducted relating to the works carried out by the petitioner. Subsequently, another application was filed seeking for the details of the inspection with specification to which an endorsement was issued by the Assistant Executive Engineer acting under the provisions of the RTI Act stating that no inspection was conducted relating to the works executed by the petitioner. Placing reliance on these documents, learned counsel argued that the inspection reports dated 12.1.2009 and 17.4.2010 are ex-facie illegal, more particularly the inspection report dated 17.4.2010 structured as joint inspection report is merely based on the first inspection report dated 12.1.2009. In the absence of any inspection having been conducted as conveyed under the RTI Act, the reports impugned would be a black mark on the career of the petitioner. Hence, seeks for interference by this court.
5. Learned counsel for the petitioner has placed reliance on the following judgments 1. ABL International Limited and another Vs. Export Credit Guarantee Corporation of India Limited and others reported in (2004)3 SCC 553.
2. ICOMM Tele Limited Vs. Punjab State Water Supply and Sewerage Board and another reported in (2019)4 SCC 401.
3. (2004) 13 SCC in the case of Durga Enterprises (P) Limited & another Vs. Principal Secretary, Government of U.P. and others.
to contend that relegating the petitioner to avail the remedy of suit at this stage would cause injustice that too in the third round of litigation, at the stage of final hearing. No order passed by this Court without hearing the petitioner would be binding on the petitioner inasmuch as the inspection report dated 12.1.2009 is concerned.
6. Learned counsel Sri.S.Sriranga appearing for the respondents would submit that the petition is not maintainable since the issue involved herein necessarily involves the question of facts, the contract between the parties herein is not a statutory contract and being governed by the provisions of the Contract Act is in the realm of private law. Any such dispute cannot be adjudicated in the writ petition. Inviting the attention of this court to Clause-13 of the Agreement, learned counsel submitted that in case of any dispute in respect of any claims by the contractor, he may appeal to the jurisdictional Chief Engineer(Elecl), Bangalore Zone, BESCOM, Bangalore, who may hear and decide the dispute within one month from the date of appeal and his direction shall be final and binding on the Contractor. Further, it is submitted that the petitioner without availing the remedy available under the agreement for resolving the dispute, has rushed to the court.
7. Learned counsel placing reliance on the order of this Court in W.P.Nos.48670-671/2014 disposed of on 29.11.2016 (M/s Vennala Enterprises Vs. Bangalore Electricity Supply Company Limited) submitted that the very same inspection report dated 12.1.2009 was considered by this Court and has been upheld. All other similarly placed Contractors indeed had approached the Civil Court seeking redressal of their grievance and in some matters on the decree granted in favour of the Contractors, the 1st respondent Authority has filed the First Appeals and the matters are pending before this Court.
8. It is further submitted that as regards the second inspection report dated 17.4.2010, the petitioner was put on notice and a joint inspection was conducted and the report has been issued to which the petitioner cannot raise any voice. The disciplinary proceedings initiated against the officers/officials involved in the scam for the period in question is still pending and in view of the order of this court dated 18.2.2014, the pendency or disposal of the enquiry would not be relevant for the purpose of this writ petition.
9. Learned counsel has also placed reliance on the order of this Court in the case of Sri.H.Udayashankar Vs. State of Karnataka reported in ILR 2014 KAR 4521.
10. I have carefully considered the rival submissions of the learned counsel for the parties and perused the material on record.
11. The main thrust of controversy revolves around the inspection reports dated 12.1.2009 and 17.4.2010. It is the contention of the petitioner that no such inspection has been conducted by the respondent Authorities to fix the liability in view of the financial loss said to have been suffered by the Department. The endorsement/communication issued by the Executive Engineer/Assistant Executive Engineer, exercising the powers under the RTI Act that no inspection relating to the works carried out by the petitioner has been made, has not been controverted by the respondent Authorities. On the other hand, reliance is placed on the order of this Court in M/s Vennala Enterprises, supra, whereby this Court has upheld the inspection report dated 12.1.2009. The second joint inspection report dated 17.4.2010 certainly depends on the first inspection report dated 12.1.2009. Whether the inspection was carried out relating to the works executed by the petitioner or the inspection report is designed to put the petitioner under liability are all pure question of facts which cannot be adjudicated in the writ jurisdiction. However, at this length of time, relegating the petitioner to the Civil Court would not be justifiable.
12. In the circumstances, this Court finds it appropriate to direct the petitioner to avail the remedy in terms of Clause 13 of the agreement at Annexure-A to the writ petition by raising the dispute before the jurisdictional Chief Engineer. If such dispute is raised in respect of the claims of the petitioner within a period of two weeks from the date of receipt of certified copy of the order, the same shall be considered by the jurisdictional Chief Engineer in accordance with law on merits without objecting to the period of limitation, if any. The jurisdictional Chief Engineer shall take an independent decision without being influenced by any of the orders passed by the Managing Director of the respondent No.1 Company in accordance with law after hearing the petitioner, in an expedite manner. All rights and contention of the parties are left open.
With the aforesaid observations and directions, the writ petition stands disposed of.
Sd/- JUDGE Dvr: