M/S.Pm Swimming Centre vs Bruhat Bangalore Mahanagara ...
2021 Latest Caselaw 3753 Kant

                           1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 10TH DAY OF NOVEMBER, 2021
                                                          R
                        BEFORE

       THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

         WRIT PETITION No.12524 OF 2021 (LB-BMP)

BETWEEN:

M/S. PM SWIMMING CENTRE
A PARTNERSHIP FIRM, REPRESENTED
BY ITS PARTNER SHRI M.BABANNA
HAVING ITS OFFICE @ 129,
7 MAIN, 5TH BLOCK, JAYANAGAR,
BENGALURU - 560 041.
                                         ... PETITIONER
(BY SRI L.CHIDANANDAYYA, ADVOCATE
    (PHYSICAL HEARING))

AND:

1.     BRUHAT BANGALORE MAHANAGARA PALIKE
       BY ITS JOINT COMMISSIONER (SOUTH)
       JAYANAGAR 2ND BLOCK,
       9TH CROSS, 9TH MAIN,
       BENGALURU - 560 011.

2.     CHIEF ENGINEER (SOUTH)
       BRUHAT BANGALORE MAHANAGARA PALIKE
       JAYANAGR 2ND BLOCK,
       9TH CROSS, 9TH MAIN,
       BENGALURU - 560 011.

3.     EXECUTIVE ENGINEER (PROJECTS-SOUTH),
       BRUHAT BANGALORE MAHANAGARA PALIKE
       JAYANAGAR 2ND BLOCK,
                         2



     9TH CROSS, 9TH MAIN,
     BENGALURU - 560 011.

4.   ASST. EXECUTIVE ENGINEER (SOUTH)
     BRUHAT BANGALORE MAHANAGARA PALIKE
     JAYANAGAR 2ND BLOCK,
     9TH CROSS, 9TH MAIN,
     BENGALURU - 560 011.

5.   EXECUTIVE ENGINEER
     BWSSB (SOUTH- EAST-2)
     11TH MAIN ROAD, 35TH CROSS,
     4TH T BLOCK, KAPILABHAVANA,
     NEAR HEAD POST OFFICE,
     JAYANAGAR, BENGALURU - 560 041.

6.   ASST. EXECUTIVE ENGINEER (SOUTH- EAST)
     BWSSB (SOUTH- EAST-2)
     11TH MAIN ROAD, 35TH CROSS,
     4TH T BLOCK, 2ND FLOOR,
     KAPILABHAVANA, NEAR HEAD POST OFFICVE,
     JAYANAGAR,
     BENGALURU - 560 041.
                                  ... RESPONDENTS

(BY SMT.SINCHANA M.R., ADVOCATE FOR R1 TO R4
    (PHYSICAL HEARING);
    SRI K.B.MONESH KUMAR, ADVOCATE FOR R5 AND R6
    (PHYSICAL HEARING))

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
CALL FOR RECORDS WHICH ULTIMATELY RESULTED IN
PASSING COMMUNICATION IMPUGNED ANNEXURE-A,
THE COMMUNICATION DATED 20.10.2020 PASSED BY R3
DIRECTING R6 RECOVERY OF RS.1,93,73,184; QUASHING
THE COMMUNICATION DATED 20.10.2020 IMPUGNED
ANNEXURE-A PASSED BY R3 THAT THE CLAIM OF SUM
OF RS.1,93,73,184 FROM THE PETITIONER IS ILLEGAL
AND WITHOUT THE AUTHORITY OF LAW.
                            3



     THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 27.10.2021, COMING ON
FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING :-
                        ORDER

The petitioner is before this Court seeking the

following prayers:

(a) CALL for the records which ultimately resulted in passing communication impugned Annexure-A, the communication dated 20-10-2020 passed by the 3rd respondent directing 6th respondent recovery of Rs.1,93,73,184/-.

(b) ISSUE an order, direction or writ in the nature of certiorari quashing the communication dated 20.10.2020 impugned Annexure-A passed by the 3rd respondent that the claim of sum of Rs.1,93,73,184/- from the petitioner is illegal and without authority of law;

(c) ISSUE an order, direction or writ in the nature of mandamus directing the respondents 1 - 6 not to claim the arrears prior to 1996 from the petitioner.

(d) ISSUE an order directing the respondents 5 and 6 to restore sewage connection to Swimming pool forthwith.

(e) ISSUE such other reliefs which this Hon'ble Court may deem fit in the facts

and circumstances of the case by awarding exemplary cost to the petitioner.

2. Heard Shri L.Chidanandayya, learned counsel

for the petitioner; Smt. M.R.Sinchana, learned counsel

for respondents 1 to 4 and Sri.K.B.Monesh Kumar,

learned counsel for respondents 5 and 6.

3. Brief facts leading to the filing of the present

petition, as borne out from the pleadings, are as

follows:-

The petitioner is M/s P.M. Swimming Centre. The

swimming pool at Jayanagar III Block was being

managed initially by the Bangalore Development

Authority and then was handed over to the Bangalore

Mahanagara Palike ('BMP' for short). When the

swimming pool was in possession of the BMP, a notice

inviting tender for running the swimming pool on

payment of user fee was notified by the BMP in the year

1995. The petitioner participated in the tender process

and emerged as a successful tenderer and was awarded

a contract for running and maintaining the swimming

pool for a period of 5 years. In furtherance of the said

award of tender, the 3rd respondent representing the 1st

respondent executed a lease agreement authorizing the

petitioner to run and maintain the swimming pool for a

period of 5 years on an yearly payment of Rs.20,000/-.

4. On 6.11.1996 the swimming pool was closed for

its improvement and was brought back into operation

on 20.02.1997. In the interregnum, the petitioner

received a bill from the 6th respondent/Bangalore Water

Supply and Sewerage Board ('the Board' for short)

claiming Rs.16,01,480/- to be the arrears of amount to

be paid by the petitioner. The petitioner, in turn,

requested the 6th respondent to approach the BMP for

payment of arrears. The petitioner again addressed a

communication to the Board that it does not want the

water supply to be made to the swimming pool as it has

made its own arrangements. Therefore, from the date on

which the petitioner took over the swimming pool water

supply from the Board was not utilized and accordingly,

supply was stopped. What continued was only sewerage

connection and what was paid by the petitioner was

sewerage charges. A few correspondences took place

between the BMP, the Board and the petitioner in the

interregnum.

5. A fresh tender notification was again issued in

the light of expiry of 5 years period of the earlier tender

notification which was again awarded to the petitioner.

In the lease deed that was signed in the year 2001, the

petitioner indicated that there was no clarity with regard

to actual arrears to be paid to the Board and the

petitioner would fully co-ordinate for settlement of the

dispute with the Board. This is in the year 2001. Up to

the year 2003 there were certain communications sent

by the Board to the BMP and the BMP had cleared all

its arrears as obtaining in the year 2003.

Communication again was made somewhere in the year

2009 after which, the impugned communication is

made in the year 2020 i.e., on 20.10.2020 demanding a

sum of Rs.1,93,73,184/- from the petitioner quoting it

to be arrears of payment that the Board has to receive.

This was communicated to the Bruhat Bengaluru

Mahanagara Palike ('the BBMP' for short) by the Board.

The BBMP in turn communicated the same to the

petitioner. The BBMP directs that the arrears should be

recovered from the petitioner by the Board and the

BBMP is in no way obliged to pay the amount as the

swimming pool is managed by the petitioner. It is at

that juncture, the petitioner knocked the doors of this

Court through this writ petition.

6. The learned counsel appearing for the petitioner

contends that the swimming pool was taken over by the

petitioner in the year 1996 pursuant to him emerging

successful bidder. At that point in time, there was no

arrears that the petitioner had to pay. The petitioner

also stopped drawing water through the supply of the

Board right from the inception and retained only the

sewage connection. Therefore, when it had not utilized

water of the Board, there cannot be any payment that

can be claimed by the Board in that regard. The learned

counsel would further emphasize that the Board cannot

wake up after 25 years and seek payment at the hands

of the petitioner having kept quiet all these years.

7. On the other hand, the learned counsel

appearing for the Board would vehemently refute the

submissions made by the petitioner and contend that

the Board has issued bills month on month and every

bill indicates arrears. The petitioner or the BBMP having

not paid arrears, either one of them have to pay the

arrears forthwith along with interest. According to the

Board, along with interest, as on date when the matter

was heard, the arrears was Rs.2,02,73,184/-. Money

has to come into the Board as it is arrears of 25 years.

8. The learned counsel appearing for the

respondent/BBMP would take this Court to the

objections and the documents to contend that the BMP

has already cleared all the arrears that are to be paid

way back on 24.04.2003 itself which is acknowledged

by the Board. The Board having received the amount in

full and final settlement cannot now contend that the

BBMP has to pay the aforesaid amount of

Rs.2,02,73,184/-. The BBMP has clearly communicated

to the Board as to the date of payments made through

its communication dated 02.09.2021 and would submit

that the BBMP has no arrears to pay as on date as they

were cleared in the year 2003 itself.

9. I have given my anxious consideration to the

submissions made by the respective learned counsel

and perused the material on record.

10. The afore-narrated facts are not in dispute.

The petitioner emerged to be a successful tenderer in

the year 1996 of the Jayanagar Swimming Pool

contract. The petitioner received a notice from the

Board with regard to arrears of payment. This was

replied by the petitioner on 16.01.1997. The said reply

reads as follows:

"Sub: Bangalore Mahanagara Palike Swimming Pool, Jayanagar III Block

- Leased to P.M. Swimming Centre for maintenance.

--

The above swimming pool has been taken on lease for maintenance with effect from 25th October, 1996 and the same has been closed for renovation. Since then we have not used water of BWSSB and further, we are not going to use BWSSB water, since we have our own source.

Hence, you are requested to approach Bangalore Mahanagara Palike for the clearance of arrears of water bills."

(Emphasis added) Two factors that emerge from the reply are - (i) that the

water of the Board was not used by the petitioner and

would not use in future as it has its own source and (ii)

that the Board was requested to approach the BMP for

clearance of arrears if any. The BMP communicated to

the petitioner on 8.06.1998 with regard to payment of

water charges to the Board. This is again replied by the

petitioner on 15.06.1998 which reads as follows:

"Sub: Payment of water supply charges to BWSSB.

Ref: Your Ref.No.EE(P)/AC3/6/98-99 dt.8-06-98.

--

Kindly refer to your letter dated 8-06-1998 and we fully agree that it is the responsibility of P.M.Swimming Centre to pay BWSSB consumption charges from the date of taking over swimming pool from the BMP i.e., from 25.10.1996.

At the time of taking over of swimming pool for maintenance, there is an arrears of water charges to the extent of Rs.16,02,480/- which has to be paid by BMP. Further the pool was closed for renovation from 25.10.1996 and after renovation the pool was reopened for use with effect from 20-02-1997.

The bill for the month of January 1997 sent to BMP for making payment and clearance of arrears of bill.

The BWSSB was informed in our letters dated 16.01.1997 that BWSSB connection is not required and we will arrange water from our own source.

Thereafter the BWSSB was requested again to restore the BWSSB connection by fixing separate water meter. The BWSSB has fixed 3" dia new meter on 17.05.1997 as the previous

meter was showing abnormal reading as per the BWSSB letter dated 22-07-1997. The BWSSB stated that the average bill has been issued for the disputed period and six months consumption bill be required to calculate the average billing and hence the BWSSB has requested to wait till completion of six months.

The P.M. Swimming Centre is paying water consumption bill regularly as and when bill received. The arrears to be paid appears to be for the period before taking over the pool for maintenance. However, the copy of the water consumption charges paid bill is enclosed as desired and also our letters addressed to BWSSB.

There is no arrears to be paid for the period the swimming pool taken over for maintenance."

(Emphasis added)

11. The petitioner again emerged as successful

tenderer in the year 2001 and was awarded the

contract. The award of contract resulted in entering into

a lease. The terms and conditions of lease insofar as it

pertains to the arrears of water bills read as follows:

"(36) It is not clearly mentioned that the actual arrears amount to be paid to BWSSB. Hope this arrears relates to earlier period, as such we will only coordinate for the settlement of dispute with BWSSB"

What emerges from the aforesaid extract is that terms

and conditions from 1 to 35 are accepted. Insofar as

arrears of bills, the petitioner only undertook to

coordinate for settlement of dispute with the Board but

never agreed that it would clear all the arrears, if any, to

the Board.

12. The Board again on 16.10.2003 communicated

that the amount between the period from September,

1996 till the end of September, 2003 has not been paid

and a request was made to remit an amount of

Rs.15,07,871/- as arrears of water supply charges. The

communication dated 16.10.2003 reads as follows:

"Sub: Water supply arrears pertaining to RR No. 62411/J1/256 - Swimming Pool, III Block, Jayanagar.

--

Swimming Pool at Jayanagar III Block was constructed long back by BDA and subsequently, the BMP authorities has taken over the maintenance of this swimming pool from 1986 to 1996 and has been handed over to your organization for maintenance from September, 1996.

The water supply arrears for the period September, 1996 to till date is not paid by you. The total amount comes to Rs.15,07,871/- up to end of September, 2003. You are requested to remit the amount of Rs.15,07,871/- immediately to BWSSB authorities."

The petitioner immediately replied to the said notice

indicating the dates and events that have happened and

remittance of amount for the petitioner having used the

water and the fact that there were no arrears.

13. Identical communication was made to the

BBMP by the Board on 22.01.2003. The claim in the

said communication was Rs.25,79,879/-. The arrears

for the said calculation was for the period between

January 1987 to January 2003. This is replied to by the

BBMP by making necessary payment which is

acknowledged by the Board by its communication dated

24.04.2003. The communication reads as follows:

"Sub: Long water stop arrears to be collected by BMP Swimming Pool at 3rd Block, Jayanagar, Bangalore - RR No.62411/J1/256.

Ref: BWSSB/AEES-2/1233/02-03 dated 6-02-2003.

--

In continuation of this office letter cited under reference and personal meeting with you on 23-04-2003, the Bangalore Development Authority have handed over the swimming pool located at 3rd Block, Jayanagar to BMP, from January 1987. As per the discussions, a revised statement was prepared from the AEES-2 sub-division up to end of January 2003 and sent to your office.

The amount payable from BMP is Rs.7,85,000/- to the end of 4/03 which is provisional .....

You are requested to arrange for payment of the above water supply arrears immediately."

(Emphasis added) The chart of payment was also indicated in terms of the

correspondence by the Board to the BBMP. Again the

Board on 17.10.2003 directed payment of arrears by the

BBMP which was for the period between January 1987

and April 1995. The same was communicated to the

petitioner as well.

14. After the aforesaid communications what

prevailed was an astounding silence on the part of the

BMP or the Board for a period of 17 years and thereafter

what comes about is a communication dated

20.10.2020 by the BBMP which is also served upon the

petitioner. This communication is in reply to a demand

made by the Board on 6.10.2020 demanding a sum of

Rs.1,93,73,184/- as arrears to be paid by the BBMP.

The BBMP, in turn, by the impugned communication

directs the Board to recover the same from the

petitioner. In furtherance of the said effort of recovery,

the Board for the first time, disconnected the sewerage

connection on account of non-payment of arrears. It is

then the petitioner files this writ petition on 7.07.2021

challenging the impugned action.

15. The contention of the learned counsel

appearing for the Board that bills were raised month on

month and arrears was indicated to both the petitioner

and the BMP month on month will render the claim of

the Board neither here nor there. Admittedly, the

arrears pertain to the period when the petitioner was

not in the picture. There are no arrears to be paid by

the petitioner after the petitioner coming into the

picture for maintaining and running the swimming pool.

It is not in dispute that sewerage charges are being paid

by the petitioner month on month basis diligently right

from the date on which it took over the swimming pool.

Therefore, there can no doubt that the arrears the

Board is claiming pertains to a period prior to the

petitioner coming into the picture.

16. Admittedly, the officers of the Board have now

woken up from deep slumber of 25 years or 18 years as

the case would be, cannot be seen to contend that they

are right in demanding the amount at this juncture,

that too from the hands of the petitioner. It is germane

to notice certain statutory provisions which empower

the Board to disconnect either water connection or

sewerage connection when a consumer defaults in

payment. Section 75-A of the Bangalore Water Supply

and Sewerage Act, 1964 ('Act' for short) reads as follows:

"Section 75-A. Board to cut off sewerage connection. - The Board may cut off sewerage connection to any premises.-

(a) if the premises are unoccupied;

(b) if the owner or occupier contravenes the provision of this Act or neglects to comply with any lawful order or requisites regarding water supply or sewerage connection issued by the Board within the period specified therein;

c) if any charges or any other sum due for water supply or sewerage connection or the cost of carrying out work or test conducted with water supply or sewerage, chargeable on the owner or occupier under this Act, is not paid within fifteen days after issue of bills for such charges;

(d) on receipt of requisition from any statutory authority on the ground of violation of any statutory provisions by the owner/occupier/developer of the building."

(Emphasis supplied)

Section 75-A deals with the power of the Board to

cut off sewerage connection. Section 75-A(c) mandates

that if any charge or any other sum due for water

supply or sewerage connection or the cost of carrying

out work is not paid within fifteen days after issue of

bills for such charges, the sewerage connection would

be cut off. Merely sending bills month on month

claiming arrears which according to the Board remained

unpaid will not enure to the benefit of the Board to

contend after 25 years that arrears have to be paid that

too by the petitioner. The action, according to the Act,

ought to have been taken by the Board at the right time

by stopping water or sewerage connection to the place

in which the petitioner is running swimming pool.

17. It is also not disputed that the BMP has

cleared the bills that were raised as on 2003 and such

clearance has been accepted by the Board. But, the

dispute with regard to payment of arrears still looms

large between the BMP and the Board. The petitioner

cannot be brought into the picture for payment of such

huge arrears that too for not using water of the Board

for 25 years. Delay in such cases defeats the rights of

statutory authorities is the view taken by the Apex

Court in the case of DELHI DEVELOPMENT

AUTHORITY v. RAM PRAKASH1 wherein the Apex

Court holds as follows:

"15. Ultimately, on a question of limitation being raised in respect of the demand of misuser charges, the Division Bench observed that where no period of limitation is prescribed, action has to be taken by the authorities within a reasonable period of time, but by no stretch of imagination, could it be said that after a lapse of almost 25 years DDA had not acted arbitrarily or at least unfairly insofar as the respondent is concerned. In addition, the respondent was never informed by DDA that he was required to pay any misuser charges. On the basis of such reasoning, the Division Bench of the High Court dismissed the appeal and upheld the order of the learned Single Judge.

                ...          ...            ...           ...
                19. Appearing       in     person,    the

respondent, on the other hand, submitted that after the show-cause notices were issued no action whatsoever was taken on the basis thereof and all of a sudden the exorbitant misuser charges, amounting to Rs. 1,78,85,001 was demanded from him.

Professor Ram Prakash submitted that from 1983, nothing had been done by DDA on the basis of the show-cause notices which had been issued, to which the respondent had promptly replied stating that the construction on the terrace had been effected by the tenants and not by him and in respect whereof proper proceedings had been initiated for their eviction from the premises. The respondent submitted that it is only under severe

(2011) 4 SCC 180

compulsion, that he had to move the writ court for relief in relation to the demand of misuser charges of Rs. 1,78,85,001. The respondent submitted that for the last 25 years he had been made to face various problems and uncertainties, but that it was entirely unjustified on the part of DDA to raise the claim of alleged misuser charges of Rs. 1,78,85,001. The respondent submitted that after a long period of 25 years, a quietus was required to be given to the matter.

.. . ... ... ...

21. Having considered the submissions made on behalf of DDA and by the respondent appearing in person, and also having considered the reasoning of the learned Single Judge and the Division Bench in repudiating the claim of misuser charges by DDA, we are unable to convince ourselves that the decisions rendered by the High Court, both by the learned Single Judge as also the Division Bench, require any interference in these proceedings. The materials on record will show that the respondent took prompt steps against the tenants for their transgression. During arguments it was indicated that, in fact, one of the tenants had already vacated the portion of the premises occupied by him. It is also very clear that after issuing the show-cause notices, the petitioner did not take any follow-up action thereupon. Instead, after a lapse of 25 years, the petitioner set up a claim on account of charges for the entire period. It would be inequitable to allow the petitioner which had sat over the matter to take advantage of its inaction in claiming misuser charges.

22. Even as to the contention raised on behalf of the petitioner that there was no limitation prescribed for making a demand of arrear charges, the Division Bench relying on the decision of this Court in State of Punjab v. Bhatinda District Coop. Milk Producers Union Ltd. [(2007) 11 SCC 363] , observed that even where no period of limitation is indicated, the statutory authority is required to act within a reasonable time. In our view, what would construe a reasonable time, depends on the facts and circumstances of each case, but it would not be fair to the respondent if such demand is allowed to be raised after 25 years, on account of the inaction of the petitioner."

(Emphasis supplied)

The Apex Court in the afore-extracted judgment clearly

holds that even when no period of limitation is

indicated, the statutory authority is required to act

within a reasonable time. Waking up after 25 years

without taking any follow up action, the authorities

cannot set up a claim of payment of charges for the

entire period. The Apex Court holds that it would be

inequitable to allow the authorities who have slept over

the matter to take advantage of their own wrong in

claiming misuse charges thereon.

18. The facts of the case before the Apex Court

would, in my considered view, cover the facts of the case

on hand on all its fours. The Board again without

performing its action under the Act taking such

measures of recovery of arrears from the BBMP or the

petitioner cannot now wake up after 25 years and

contend that meager amount that stood as arrears prior

to the petitioner becoming successful bidder has grown

to mountainous proportion today and demand such

amount.

19. Insofar as the judgments relied on by the

learned counsel appearing for the Board is concerned,

the Apex Court in the case of MUNICIPAL

CORPORATION OF GREATER MUMBAI V. HARISH

LAMBA OF BOMBAY, INDIAN INHABITANT AND

OTHERS reported in (2020)15 SCC 171 held that the

water tax or water benefit tax can be recovered or has to

be paid even after the water connection stands

disconnected. That was a case where the Apex Court

was considering the challenge on the ground of

limitation and the initiation for recovery of such amount

was made within 3 years as the arrears in the case

before the Apex Court was determined on 31.03.1994

and the Apex Court observes that the 3 years limitation

period would have expired on 30.03.1997 and the

impugned demand notices had been issued on

10.01.1997. Therefore, it was within the period of

limitation. The interest component on the arrears was

also observed by the Apex Court. Therefore, the said

judgment is distinguishable on the facts of the case at

hand without much ado.

20. In the case of BIHAR STATE ELECTRICITY

BOARD, PATNA AND OTHERS V. M/S GREEN RUBBER

INDUSTRIES AND OTHERS reported in (1990) 1 SCC

731, the Apex Court was considering the action of

disconnection of supply on 28.09.1981 for a demand

notice that was received by the consumer on October,

1981. The charges payable were between June 1981 to

August 1981 amounting to Rs.22,951.50. Therefore,

the case also was where the Apex Court considered a

demand made within reasonable time and the

contention therein was that the firm was not liable to

pay any amount. Therefore, the said judgment also

does not support the contention of the learned counsel

appearing for the Board.

21. The Apex Court in the case of FERRO ALLOYS

CORPORATION LTD., V. A.P.STATE ELECTRICITY

BOARD AND ANOTHER reported in 1993 Supp. (4)

SCC 136 has held that providing for interest on the

charges was neither arbitrary nor unreasonable.

paragraph 143 on which the learned counsel seeks to

place reliance upon, is, in my considered view,

misplaced and is not applicable to the facts of the case

at hand. Therefore, none of the judgments relied on by

the learned counsel appearing for the Board would lend

any support to the contentions advanced by the learned

counsel. The judgment in the case of DELHI

DEVELOPMENT AUTHORITY (supra) is apposite to the

facts obtaining in the case at hand.

22. Since statutory authorities are at loggerheads

in the case on hand, the authorities will have to sit

across and resolve the dispute between themselves with

regard to payment of arrears. This is in consonance

with the observations of the Apex Court in the case of

ONGC v. COLLECTOR OF CENTRAL EXCISE reported

in 1995 Supp. 4 SCC 541 which deals with disputes

between the Union of India and its public sector

undertakings. This judgment has been again

considered and followed in ONGC v. COLLECTOR OF

CENTRAL EXCISE2. The Apex Court in the said

judgment holds as follows:

"2. The relevant portion of the memo referred to in the course of this Court's order dated 11-10-1991 [Oil and Natural Gas Commission v. CCE, 1995 Supp (4) SCC 541] reads: (SCC p. 541, para 2) "It is in this context that the Cabinet Secretariat has issued instructions from time to time to all departments of the Government of India as well as to public sector undertakings of the Central Government to the effect that all disputes, regardless of the type, should be resolved amicably by mutual consultation or through the good offices of empowered agencies of the Government or through arbitration and recourse to litigation should be eliminated."

(emphasis supplied in the original) ... ... ... ...

4. There are some doubts and problems that have arisen in the working out of these arrangements which require to be clarified and some creases ironed out. Some doubts persist as to the precise import and implications of the words "and recourse to litigation should be avoided". It is clear that the order of this Court is not to the effect that -- nor can that be done -- so far as the Union of India and its statutory corporations are concerned, their statutory remedies are effaced. Indeed, the purpose of the constitution of the High-Powered Committee was not to take away those remedies. The relevant

(2004) 6 SCC 437

portion of the order reads: (SCC pp. 541-42, para

3) "3. We direct that the Government of India shall set up a committee consisting of representatives from the Ministry of Industry, the Bureau of Public Enterprises and the Ministry of Law, to monitor disputes between Ministry and Ministry of the Government of India, Ministry and public sector undertakings of the Government of India and public sector undertakings in between themselves, to ensure that no litigation comes to court or to a tribunal without the matter having been first examined by the Committee and its clearance for litigation. The Government may include a representative of the Ministry concerned in a specific case and one from the Ministry of Finance in the Committee. Senior officers only should be nominated so that the Committee would function with status, control and discipline."

(emphasis supplied in original)

It is abundantly clear that the machinery contemplated is only to ensure that no litigation comes to court without the parties having had an opportunity of conciliation before an in-house committee."

The Apex Court clearly held that unnecessary litigation

between the wings of the Government should be avoided

and parties should have a conciliation.

23. Therefore, it is for the Board and the BBMP to

resolve the dispute of payment of arrears without

dragging the petitioner in the cobweb of the dispute and

enmesh it into the burden of clearing the arrears of

more than Rs.2 crores. The swimming pool cannot be

let into deep sea of an imaginary clam.

24. The case at hand is a case where the officers of

the Board ought to be held responsible for their

lackadaisical attitude in not taking prompt and swift

action in terms of the statute and having let the amount

of arrears grow to mountainous proportions. Since the

laxity on the part spans to around 25 years and few of

the officers who have handled this Section in the Board

would have retired, this Court holds its hands to direct

any disciplinary proceeding to be initiated against those

officers at this point in time for recovery of the amount,

but the case at hand should act as an eye opener for the

Board to set its house in order and not repeat such

glaring mistakes in future.

25. For the aforesaid reasons, I pass the following:

ORDER

(i) The Writ Petition is allowed.

(ii) The communication dated 20-10-2020 issued by the 3rd respondent demanding payment of Rs.1,93,73,184/- from the hands of the petitioner stands quashed, with a direction to the respondents not to make any claim of arrears on the petitioner for the period prior to 1996.

(iii) The Board and the BBMP are at liberty to resolve the dispute amongst themselves with regard to arrears as demanded.

(iv) Registry is directed to communicate a copy of this order to the Secretary, Department of Urban Development.

Sd/-

JUDGE bkp CT:MJ