Karnataka High Court

Sri Ashok Jogi vs State Of Karnataka on 18 December, 2021

Bench: Chief Justice, Sachin Shankar Magadum

                           -1-


 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 18TH DAY OF DECEMBER, 2021

                        PRESENT

THE HON'BLE MR. RITU RAJ AWASTHI, CHIEF JUSTICE

                          AND

THE HON'BLE MR.JUSTICE SACHIN SHANKAR MAGADUM

    WRIT PETITION NO.9540 OF 2020 (GM-MMS)

BETWEEN:
1. SRI ASHOK JOGI
   AGED ABOUT 52 YEARS
   S/O LATE JAGANNATHA JOGI
   R/O "SHANTHA NILAYA" , PUTTHIGE
   HIRIYADKA, BOMMARABETTU
   UDUPI - 576 113

2. M/S.YOJAKA (INDIA) PVT. LTD.
   REG. OFFICE:D.NO.3-28/43, 2ND FLOOR
   ABCO TRADE CENTRE, N.H.66
   KOTTARA CHOWKI
   MANGALORE - 575 006
   REP. BY ITS MANAGING DIRECTOR
                                         ... PETITIONERS
(BY SRI NATARAJA BALLAL A, ADVOCATE)


AND:
1. STATE OF KARNATAKA
   DEPARTMENT OF MINES & GEOLOGY
   1ST FLOOR, RAJATADRI, MANIPAL
   UDUPI - 576 104

2. DEPUTY COMMISSIONER
   UDUPI DISTRICT
   RAJATADRI, MANIPAL
   UDUPI - 576 104

3. COMMISSIONER
   UDUPI CITY MUNICIPAL COUNCIL
   UDUPI - 576 101
                               -2-



4. SRI KARTHIK NAYAK
   MAJOR
   CHIKKANSAL ROAD
   GANDHI MAIDAN
   KUNDAPURA - 576 201

5. SRI ARJUN MANO SHETTY
   PROPRIETOR
   M/S. NEMMADI CONSTRUCTIONS
   KALLIANPUR, 2-4F, JAYANAGAR
   SANTHEKATTE ROAD
   UDUPI TQ. & DIST. - 576 114
                                        ... RESPONDENTS
(SRI S.S.MAHENDRA, AGA FOR RESPONDENT NOS.1 AND 2
 SRI T.I.ABDULLA, ADVOCATE FOR RESPONDENT NO.3
 RESPONDENT NO.5 - SERVED)
                              ---
      THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A
WRIT OF CERTIORARI TO QUASH THE E-AUCTION DATED
06.08.2020   BEARING     NO.DMG/SGUDUPI/NOTIFICATION/E-
AUCTION/2020-21 (ANNEXURE-A) ISSUED BY THE RESPONDENT
NO.1 OR IN THE ALTERNATIVE NOT TO REMOVE THE DESILTED/
DREDGED MATERIALS UNTIL THE COMPLETION OF THE
CRIMINAL CASE NO.PCR 295/2020 PENDING ON THE FILE
PRINCIPAL CIVIL JUDGE & JMFC, UDUPI AND ETC.

     THIS PETITION COMING ON FOR ORDERS THIS DAY,
CHIEF JUSTICE MADE THE FOLLOWING:

                            ORDER

Heard learned counsel for the petitioners, learned

Additional Government Advocate appearing for respondent

Nos.1 and 2 and learned counsel appearing for respondent

No.3.

2. The writ petition has been filed seeking the following

reliefs:

"(a) Issue a writ of CERTIORARI to quash the e-auction dated 06/08/2020 bearing no.DMG/SGUdupi/Notification/e-auction/ 2020-21 (Annexure-A) issued by the Respondent no.1 or in the alternative not to remove the desilted/dredged materials until the completion of the criminal case no.PCR 295/2020 pending on the file Principal Civil Judge & JMFC, Udupi;

(aa) Issue a writ of CERTIORARI to quash the e-auction dated DMG/SGUdupi/ Notification/e-auction/2020-21 dated 26/08/2020 (Annexure-D) issued by the Respondent no.1 or in the alternative not to remove the desilted/dredged materials until the completion of the criminal case no.PCR 295/2020 pending on the file Principal Civil Judge & JMFC, Udupi;

(b) Issue a writ of MANDAMUS to release the amounts payable to the Petitioners for the work done vide tender no.DMA/2019- 20/OW/WORK_INDENT87330/CALL-2 dated 25/06/2019 (Annexure-B);

(c) Award costs of this proceedings;

(d) Pass such other order or orders as this Hon'ble Court deems fit in the fact and circumstances of the case in the interest of justice and equity."

3. Learned counsel appearing for respondent No.3 points

out that the Court, vide order dated 26.05.2021, had

restricted consideration of only the third prayer that is, with

regard to release of the amounts allegedly payable to the

petitioners for the work done vide Tender No.DMA/2019-

20/OW/WORK_INDENT87330/CALL-2. For convenience, the

order dated 26.05.2021 is reproduced below:

"1. The learned counsel appearing for the petitioners states that now he is not challenging the notices of e-auction which are the subject matter of challenge in prayers (a) and (aa). He states that he is seeking two prayers. The first prayer is directing the first respondent not to remove the desilted/dredged materials until the completion of trial of criminal case No.PCR/295/2020 pending in the Court of Principal Civil Judge and JMFC at Udupi. He states that the second prayer is confined to a direction to the third respondent to make payment of the amount payable to the petitioners as per the work order.

2. As far as first prayer is concerned, admittedly the petitioners are not the owners of the desilted/dredged materials. Therefore, the prayer made in the petition directing the respondents not to remove the said materials till disposal of the said criminal case cannot be granted. It is ultimately for the parties to lead evidence in the pending criminal case.

3. As regards the second prayer for the release of amount, we issue notice to the third respondent returnable on 30th June 2021. In addition to the notice through the Court, the advocate for the petitioners will serve a soft copy of the amended petition along with annexures and a soft copy of this order at email-id of Udupi City Municipal Council. On receiving the soft copy of this order along with a soft copy of this petition with annexures by email, the third respondent will be under an obligation to appear before the Court on the next date."

4. An objection has been raised by learned counsel

appearing for respondent No.3 regarding grant of a writ of

mandamus to the respondents regarding payment/release

of the amounts allegedly due to the petitioners. It is

submitted by him that in the statement of objections, it is

the specific case of respondent No.3 that the amounts

claimed by the petitioners are disputed amounts.

Moreover, as per the contract, there is an arbitration clause

and in case the petitioners are aggrieved due to

non-payment of any amount, they can invoke the

arbitration clause under the contract. It is also submitted

that a criminal case is pending in this regard on the basis of

a complaint made to Lokayuktha. Lokayuktha has enquired

into the complaint and the police has submitted the report.

His submission is that in the given facts, no payment can

be made to the petitioners at this stage.

5. Learned counsel for the petitioners, on the other

hand, submits that it is only after filing of the writ petition

that the respondents have disputed the payment/release of

the due amounts. As per the terms of the contract, the

time period provided for payment is 60 days. It is also

submitted that the respondents have not disputed the

quantum of amounts to be paid, but only on the basis of

some enquiry pending with the Lokayuktha that they are

denying payment which cannot be done. In support of his

submissions, he has relied on the following judgments:

(i) UTTAR PRADESH POWER TRANSMISSION

CORPORATION LTD. AND ANOTHER vs. CG POWER AND

INDUSTRIAL SOLUTIONS LIMITED AND ANOTHER reported

in 2021 SCC ONLINE SC 383

(ii) M/S.CHAITHANYA GEO SURVEYS vs. STATE OF

KARNATAKA [Writ Petition No.10392/2020 (GM-

MMS)]

6. We have considered the submissions made by learned

counsel for the petitioners as well as learned counsel

appearing for the respondents and gone through the

record.

7. The sole question involved in the writ petition for

consideration is whether a writ Court can issue a writ of

mandamus for payment of the claimed amounts.

8. It is not in dispute that the petitioners had performed

certain work on the basis of the contract which was entered

into between petitioner No.2 and respondent No.3. It is

also not in dispute that as per the said contract, there is an

arbitration clause and in case of any dispute, the aggrieved

party can invoke the arbitration clause. The statement of

objections filed by respondent No.3 clearly indicates that in

the payment of any amount to the petitioners, several

departments are involved with respect to measurement of

work, approval and payment of the amount due.

Respondent No.3 has seriously disputed the amounts

claimed by the petitioners.

9. In this view of the matter, we are of the considered

view that the amounts claimed by the petitioners are

disputed by respondent No.3 and as such, the amount due

to the petitioners, if any, cannot be determined in a writ

Court. In case any amount is due on the basis of certain

work performed pursuant to the contract and the said

amount is 'Admitted Amount', a direction can be issued by

the writ Court for payment of the admitted amount.

However, no direction can be issued in writ jurisdiction for

payment of amount which is not admitted and rather

disputed.

10. In the case of M/S.CHAITHANYA GEO SURVEYS

(supra), the Co-ordinate Bench of this Court has considered

the issue of release of amount due to the petitioner of that

writ petition. The Court, considering the facts of the case,

has opined that in view of the order dated 06.09.2019

according approval for release of certain amount in favour

of the petitioner of that writ petition, the act of the

Competent Authority of withholding the amount which is

admittedly due to the petitioner was unfair. In paragraph

14 of the judgment, the Court has held that if the admitted

amount is not paid within the time fixed to the person

concerned, it will carry interest at the rate of 6% per

annum from the date of the order till the date of payment.

The relevant paragraphs 13 and 14 are reproduced

below:

"13. If there is a right, there should be a remedy. A writ of mandamus is issued against a person who has a legal duty to perform, but has failed or neglected to do so. In the case on hand, respondent No.2 has passed the order dated 6th September 2019 according approval for release of Rs.42,12,600/- in favour of the petitioner and a copy of the said order is forwarded to the competent authority for information and further action. It is not in dispute that the said order subsists even on this date. Inspite of the same, the payment covered under the said order has been not released in favour of the petitioner. This omission on the part of the competent authority who was obliged to comply the order dated 6th September 2019 passed by respondent No.2 to release the amount smacks of arbitrariness and unfairness. The act of the Competent Authority

of withholding the amount which is admittedly due to the petitioner as per the order dated 6th September 2019 is unfair. Similarly, the invoices raised by the petitioner for payment of Rs.6,60,800/- and Rs.1,42,910/- has been forwarded by respondent No.3 to respondent No.2 with a request to take appropriate action for release of the amounts covered under the said invoices. The petitioner, thereafter, has made representations as per Annexures-H & H1 both dated 17th April 2020 requesting respondent No.2 to take appropriate action for release of the payments. The respondent No.2 is duty bound to consider the said representations made by the petitioner. Under the circumstances, we are of the considered view that the petitioner has made out a case for issuing appropriate directions to the concerned respondents/competent authority.

14. If the admitted amount is not paid within the time fixed under this order, it will carry interest at the rate of 6% per annum from the date of this order till the date of payment. Accordingly, we pass the following:

ORDER

(i) The writ petition is allowed in part;

(ii) A writ of mandamus is issued to the competent authority of respondent No.1 to release the payment covered under the office order dated 6th September 2019 vide Annexure-G issued by respondent No.2 in favour of the petitioner in respect of conducting drone survey in 18 'C' Category mines;

(iii) The respondent No.2 is directed to consider the representations at th Annexures-H & H1 dated 17 April 2020 submitted by the petitioner in the background of the communications issued by respondent No.3 at Annexures-E & F

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dated 4th September 2019 and 13th September 2019, respectively, for release of payments in respect of other two invoices;

(iv) The aforesaid directions shall be complied within a period of two months from the date of receipt of a copy of this order;

(v) On the failure to release the amount as mentioned in clause (ii) within the stipulated time, the same shall be paid with interest at the rate of 6% per annum from the date of this order till the date of payment."

11. In the present case, the amounts in question which

are claimed by the petitioners are disputed by respondent

No.3 and there is no order for release/approval of the

amounts and as such, the said judgment cited by the

petitioners is of no help to them.

12. In the case of UTTAR PRADESH POWER

TRANSMISSION CORPORATION LTD. (supra), the Apex

Court has held that even though there is an arbitration

clause, the Corporation has not opposed the writ petition on

the ground of existence of an arbitration clause. There is no

whisper of any arbitration agreement in the counter

affidavit filed by UPPTCL to the writ petition in the High

Court. In any case, the existence of an arbitration clause

does not debar the Court from entertaining a writ petition.

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Paragraph 67 of the judgment is relevant which is

reproduced below:

"67. Even though there is an arbitration clause, the Petitioner herein has not opposed the writ petition on the ground of existence of an arbitration clause. There is no whisper of any arbitration agreement in the Counter Affidavit filed by UPPTCL to the writ petition in the High Court. In any case, the existence of an arbitration clause does not debar the court from entertaining a writ petition."

13. There is no dispute to the legal proposition laid down

by the Apex Court that even in case of existence of an

arbitration clause, a writ petition can be entertained.

However, it will depend on the facts and circumstances of

the case as to whether a writ petition can be entertained or

not.

14. In view of the above, we are of the considered view

that in the given facts and circumstances of the case, no

writ of mandamus can be issued to the respondents to

make payment of the amounts claimed by the petitioners

on the basis of certain work done by them vide tender

No.DMA/2019-20/OW/WORK_INDENT87330/CALL-2 dated