The Karnataka High Court while observing that ordinarily Writ Courts do not grant indulgence in matters involving contract and non payment of contractors’ bills, more particularly when disputed facts are involved, allowed the petition with rationale that deserving litigants cannot be driven away from the portals of court by quoting some theories of constitutional jurisprudence or of administrative law.
The single-judge bench of Justice Krishna S Dixit however opined that the aggrieved parties in such cases can very well work out their remedies by an ordinary civil suit or by invoking arbitration clause, if there be one.
The Court while pointing the above, also called out the calloussness on part of 'some public functionaries' now-a-days even in plain matters like payment of contractors bills and castigated the 'come what may' attitude.
"This is not a happy thing to happen. In every such case the contention of matter being contractual in nature cannot silence inner voice of the Constitution. Judges, to be judicious ought to keep themselves abreast of what is happening around", it said.
Making a case for allowing the writ petition, it stated that where the arbitrariness and unjustness in actions of the public functionaries/bodies galore from the record, the contention of ‘contract’, disputed facts, alternate remedy (like suit or arbitration) cannot be countenanced to deny rightful relief to a scrupulous litigant in constitutional jurisdiction.
"The mandate for fairness in the public functions will fail, if the functionaries do not keep in view the angle of justice to the aggrieved. A view to the contra, would defeat the broad delineation of writ remedies constitutionally internalized freeing the system from the shackles of traditional English Law of Writs", it said.
The petitioner, a registered Class-I Contractor filed the Writ Court against the respondent Government and its Tourism Development Corporation for not honouring his final bills despite certification of completion of the tender work. Learned Counsel appearing for the petitioner vehemently argued that there is absolutely no reason for not honouring the bills and that, in the fitness of things, “he leaves certain things to the wild imagination of the Court”.
The respondents resisted the writ petition contending that: disputed facts are involved and therefore, writ remedy is not suitable; matter is contractual in nature and therefore, petitioner should be relegated to civil remedy; there is an Arbitration Clause and therefore, Writ Court cannot interfere. So contending, they sought dismissal of the same.
After analysing the facts of the case, the Court accessed that everything appears to be murky and shady calculated to trouble the citizen with no justification.
Referring to Ramana Dayaram Shetty Vs. The International Airport Authority of India & Ors, 1979 Latest Caselaw 111 SC, the Court observed that the ‘State’ and its instrumentalities should conduct themselves as model litigants than to tread on lose soil of technical objections.
"The respondents having already taken possession of the property on 05.04.2017, having certified satisfactory completion of the work, having obtained a certificate to that effect from their designated architect, having gloriously inaugurated the building which has been put to use on day to day basis, now cannot turn around to complain that the work has not been done satisfactorily. What bewilders this Court is, the enormous delay culpably brooked by the respondents in sending negative response to the petitioner. More than one year after the building was handed over, such an apparently unsustainable stand could not have been taken by the respondent – Corporation which is an instrumentality of the 1st Respondent – Government".
It was of the view that the arguement of learned AGA appearing for the Government and the learned Panel Counsel appearing for the Corporation that there is an Arbitration Clause and therefore, petitioner should be relegated to arbitration, cannot be countenanced for three obvious reasons:
-Firstly, question of invoking arbitration clause arises when there is a “true dispute” between the parties. There being no contentious issue about the completion of the tender work and there being specific reports about satisfactory completion of the work, petitioner cannot be compelled to go for arbitration on the basis of a “make believe dispute”.
-Secondly, several representations of the petitioner resulted into a fully positive response from the side of respondent – Corporation, its Managing Director specifically asking the Government to release the fund to enable him to honour 11 the long pending bills of petitioner. Never the Government took the pains even to reply to the Corporation, let alone to the poor petitioner.
-Thirdly, the so called complaint about unsatisfactory completion of the work is concerned, it is apparently time barred since such complaints were raised for the first time, more than a year having lapsed since the structure was handed over to the Corporation and on being inaugurated, it was put to routine use.
Referring to INDIAN OIL CORPORATION LIMITED vs. M/s TATPAL PETROLEUM CENTER, the Court remarked that it is a well settled position of law that only a genuine dispute merits reference for arbitration and not ‘fictional disputes’ of the kind.
The Court again found it difficult to agree with the contention of the Panel Counsel for the Corporation that the petition involves disputed questions of fact and therefore, a Writ Court cannot undertake the adjudication. It remarked that there are sufficient elements of public law and a contract to which State is a party, does not create an island completely immune from judicial review under Article 226 & 227.
"It is not that every disputed question of fact should deter Writ Court from examining the matter. A dispute which otherwise can be fairly adjudged on the basis of pleadings of the parties accompanied by the evidentiary material on record, cannot be relegated to adjudication elsewhere, more particularly when the respondents happen to be the governmental bodies answering the definition of ‘State’ under Article 12. It is not that the so called dispute squarely falls within the realm of private law, either; there is Karnataka Transparency in Public Procurements Act, 1999 and Rules promulgated thereunder."
Noting that present is a fit case for levy of exemplary costs for the ill-treatment meted out to the scrupulous citizen who had done the work for the State entities, the Court stressed that a message should loudly go to the quarters that be, that the courts would not tolerate indolence on the part of public bodies when interest of the citizen is put to peril.
The Court accordingly allowed the writ and saddled the second respondent-Corporation with a cost of Rs.2,00,000/- payable to the petitioner in addition to interest at a reasonable rate for the delay in making payment in terms of undisputed bills, that are already authenticated by the concerned.
CASE TITLE: SHRI. M CHIRANJEEVI vs THE STATE OF KARNATAKA
CASE DETAILS: WRIT PETITION NO.46302 OF 2018
CORAM: Justice Krishna S Dixit
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