Karnataka High Court
M/S Om Slv Constructions vs State Of Karnataka on 22 November, 2023
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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WP No. 3893 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
R
WRIT PETITION NO.3893 OF 2023 (LB-BMP)
BETWEEN:
1. M/S. OM SLV CONSTRUCTIONS
12/188, VEERABADRAPPPA LAYOUT
THINDLU VIDHYARANYAPURA
BENGALURU 560097
REP BY ITS PROPRITOR
SRI. VENKATESH V.
...PETITIONER
(BY SRI. A. NAGARAJAPPA, ADVOCATE)
Digitally signed
by AND:
NARAYANAPPA
LAKSHMAMMA
1. STATE OF KARNATAKA
Location: HIGH
COURT OF DEPARTMENT OF URBAN DEVELOPMENT
KARNATAKA VIKASA SOUDHA, BENGALURU 560001
REP. BY ITS PRINCIPAL SECRETARY.
2. THE BRUHAT BENGALURU MAHANAGARA PALIKE
N R SQUARE, BENGALURU 560002
REP BY ITS CHIEF COMMISSIONER.
3. THE JOINT COMMISSIONER
HEALTH AND SOLID WASTE MANAGEMENT
N R SQUARE, BBMP, BENGALURU 560002.
4. THE JOINT COMMISSIONER
RAJARAJESHWARI DIVISION
BRUHAT BENGALURU MAHANAGARA PALIKE
BENGALURU 560098.
5. THE SUPERINTENDENT ENGINEER
RAJARAJESHWARI DIVISION
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WP No. 3893 of 2023
BRUHAT BENGALURU MAHANAGARA PALIKE
BENGALURU 560098.
6. THE ASSISTANT EXECUTIVE MANAGER
SOLID WASTE MANAGEMENT
OFFICE OF BBMP, RAJARAJESHWARI DIVISION
BEHIND SATHYANARAYANA SWAMY TEMPLE ROAD
3RD MAIN ROAD, GORAGUNTEPALYA
BENGALURU 560022.
7. THE KARNATAKA LOKAYUKTHA
BENGALURU CITY DIVISION
M S BUILDING, BENGALURU 560001.
...RESPONDENTS
(BY SMT. B.P. RADHA, AGA FOR R1
SMT. NAMITA MAHESH, ADVOCATE FOR
SRI. S.N. PRASHANTH CHANDRA, ADVOCATE FOR R2 - R6
SRI. VENKATESH S. ARABATTI, ADVOCATE FOR R7)
THIS W.P. IS FILED UNDER ARTICLE 226 AND 227 OF
CONSTITUTION OF INDIA, PRAYING TO QUASHING THE
COMMUNICATION DATED 19/01/2023 AT ANNEXURE-P ISSUED
BY THE JOINT COMMISSIONER OF RAJARAJESHWARI NAGARA
OF BBMP R-4 IN NO.VA.JUM.HAA/RA.RA.NAVA/PR/3889/2022-
23. DIRECTING THE RESPONDENT BBMP TO MAKE A PAYMENT
OF PENDING BILLS AS PER ANNEXURE-F TO F4 SERIES DATED
08/10/2017, 10/10/2017, 10/01/2018 AND 27/02/2018
RESPECTIVELY AND ANNEXURE-N TO N3 & ETC.
THIS WRIT PETITION COMING ON FOR ORDERS AND
HAVING BEEN RESERVED FOR ORDERS ON 26.10.2023, THIS
DAY, THE COURT PRONOUNCED THE FOLLOWING:
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WP No. 3893 of 2023
ORDER
1. The petitioner is before this Court seeking for the
following reliefs:
a) Issue an order or a direction or writ in nature of
writ of certiorari quashing the communication
dated 19.01.2023 at Annexure-P, issued by the
Joint Commissioner of Rajarajeshwari Nagara of
BBMP respondent No.4 in No.VA.JUM.HAA/RA.RA.
NAVA/PETITIONER/3889/2022-23.
b) Issue an order or a direction of writ in nature of
writ of mandamus directing the respondent BBMP
to make a payment of pending bills as per
Annexure-F to F4 series dated 08.10.2017,
10.10.2017, 10.01.2018 & 27.02.2018
respectively and Annexure-N to N3 dated
28.11.2022.
c) Issue any order or orders as deems fit and proper
including the cost of the proceedings.
2. The petitioner is a civil contractor having obtained
registration with the Labour Department, the
petitioner was issued a supply order by respondent
No.4-Joint Commissioner, BBMP on 30.11.2006 for
supply of pushcart, 131 pourakarmikas, 2
compactors and drivers and helpers, 9 autos for Solid
Waste Management. A revised supply order is stated
to be issued on 16.06.2017. The petitioner
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submitted the bills from time to time for clearance
claiming that the work awarded to him has been
discharged effectively. The petitioner further claims
that the discharge of his work was satisfactory.
While the petitioner was carrying on his work, the
Mayor and the District Minister had opined that
frequent change of contractor would hamper the
garbage segregation and that the contractor
appointed would have to be continued. Similar
allegedly being the view of the Corporator, the
petitioner's contract was allegedly extended.
3. The petitioner claims that respondent No.5 -
Assistant Executive Engineer made a false allegation
against the petitioner that there was a shortage in
the autos supplied by the petitioner and as such,
threatened to terminate the contract. There being a
Writ Petition in the case of M/s.OM SLV
Constructions vs. The Bruhat Bengaluru
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Mahanagara Palike and others1 filed as regards
certain discrepancies, the Anti-Corruption Bureau
was directed to enquire into the same. While the
said proceedings were pending, the petitioner
submitted various bills and called upon the BBMP
authorities to release the payments. When he was
informed by the Joint Commissioner that all the
records have been seized and are in the custody of
the City Civil Court and as such, until those
documents are returned, the request of the petitioner
cannot be considered. It is in that background that
the petitioner is before this Court seeking for the
aforesaid reliefs.
4. Sri.A.Nagarajappa, learned counsel for the petitioner
would submit that the petitioner having submitted
the bills, it was required of the respondent-BBMP to
process the same and make payment and not have
issued the endorsement/communication as done on
2022:KHC:32369 : W.P.No.32241/2018 dated 23.09.2022
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19.01.2023 at Annexure-P that the documents were
now seized by the ACB/Lokayukta and now available
with the Court and on that ground, he submits that
the Writ Petition is required to be allowed directing
the Corporation authorities to process the bills and
make payment thereof.
5. Smt.Namita Mahesh, learned counsel for respondents
No.2 to 6 /Corporation would submit that the
documents are not available with the Corporation to
process the same inasmuch as all the documents
available with the Corporation have been seized
firstly by the Anti-Corruption Bureau, secondly by the
Hon'ble Lokayukta and are now in the custody of the
Court. Until and unless those documents are
released, the Corporation cannot process the bills
and it is for that reason that the petitioner is required
to await the return of the documents.
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6. Sri.Venkatesh S.Arabatti, learned counsel for Hon'ble
Lokayukta submits that there could be four scenarios
which could be considered insofar as the request for
copies of the originals of the documents seized could
be made
6.1. Firstly, where the proceedings terminate, the
Court could return the documents.
6.2. Secondly, if the documents were to be treated
as property, the same could be dealt with in
terms of Section 451 and 452 of Cr.P.C.
6.3. Thirdly, on termination of the proceedings, an
application for return of documents could be
made under Section 452 of Cr.P.C. and
6.4. Fourthly, a party or a person could make an
application for issuance of certified copies of the
documents seized in terms of Rules applicable.
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7. He thus submits that if the party does not wish to
wait until the termination of the proceedings, an
application could be made to the Hon'ble Lokayukta
for issuance of certified copies if the documents are
in possession of the Hon'ble Lokayukta. If the
documents have been seized and submitted to the
Court, then such application would have to be made
to the Court since the Hon'ble Lokayukta would not
have custody or being in control of the documents.
Thus, he submits that any of these methodology
being followed, any one could get certified copies of
the documents or await for the proceedings to
culminate when the originals would be returned.
8. Heard Sri.A.Nagarajappa, learned counsel for the
petitioner, Smt.B.P.Radha, learned AGA for
respondent No.1, Smt.Namita Mahesh, learned
counsel for respondents No.2 to 6 and Sri.Venkatesh
S.Arabatti, learned counsel for respondent No.7 and
perused papers.
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9. The points that would arise for determination are as
under:-
(1) Whether the Corporation can deny
processing of the bills submitted by a
contractor on the ground that the
documents available with the Corporation
have been seized by the Hon'ble Lokayukta
and/or in the custody of a Court?
(2) What are the modes and methodologies
available for a party to obtain certified
copies which could be submitted to the
BBMP for due consideration?
(3) What order?
10. I answer the above points as under.
11. Answer to Point No.1: Whether the Corporation
can deny processing of the bills submitted by a
contractor on the ground that the documents
available with the Corporation have been seized
by the Hon'ble Lokayukta and/or in the custody
of a Court?
11.1. In the present case BBMP by contending that
files of the BBMP have been seized by the ACB
initially and subsequently by the Hon'ble
Lokayukta and are now in the custody of the
Court has contended that in the absence of
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those documents, the bills submitted cannot be
processed inasmuch as the veracity of those
bills cannot be checked and without checking,
the payment cannot be made. There is
substance in the arguments made by
Smt.Namita Mahesh, learned counsel for the
Corporation inasmuch as it cannot be expected
of the Corporation to process the bills without
necessary supporting documents which are
apparently seized and are now not in the
custody of the Corporation. Thus, exfacie it
appears that the Corporation can deny the
processing of any bills submitted on the ground
that it does not have necessary supporting
documents.
11.2. The above being exfacie view, if the matter is
looked at a little more deeper, there is an
obligation on the Corporation to process the
bills once it is submitted since the last
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custodian of those documents was the
Corporation. The Corporation cannot take a
contention that it does not now have the
custody of the documents. In such a situation,
it would be for the Corporation to make
necessary applications to secure either
inspection of those documents from the office
of the Honb'le Lokayukta or from the Court or
to obtain certified copies thereof in order to
enable the Corporation to process the bills.
11.3. The seizure of the documents has been made in
terms of Section 102 of Code of Criminal
Procedure which provides for any police officer
to seize any property which may be found
under the circumstances to create a suspicion
of the commission of any offence in terms of
sub-Section (1) of Section 102 of Cr.P.C. On
such seizure in terms of sub-section (3) of
Section 102 of Cr.P.C., such police officer would
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have to immediately forward the report of the
seizure to the jurisdictional Magistrate along
with the documents accompanied by property
form or else the police officer if finding it
difficult to continue to retain the property or
documents make over the custody thereof to
any person on executing a bond or undertaking.
11.4. If such a return is made, then the return would
have to be made to the immediate preceding
custodian who would be the Hon'ble Lokayukta
from whom the seizure was made. However, if
no such return is made then the documents
and/or property would have to be deposited in
a Court.
11.5. Section 102 of Cr.P.C. is reproduced hereunder
for easy reference:-
102. Power of police officer to seize certain
property.
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(1) Any police officer, may seize any property
which may be alleged or suspected to have
been stolen, or which may be found under
circumstances which create suspicion of the
commission of any offence.
(2) Such police officer, if subordinate to the
officer in charge of a police station, shall
forthwith report the seizure to that officer.
(3) Every police officer acting under Sub-Section
(1) shall forthwith report the seizure to the
Magistrate having jurisdiction and where the
property seized is such that it cannot be,
conveniently transported to the Court or
where there is difficulty in securing proper
accommodation for the custody of such
property, or where the continued retention of
the property in police custody may not be
considered necessary for the purpose of
investigation, he may give custody thereof to
any person on his executing a bond
undertaking to produce the property before
the Court as and when required and to give
effect to the further orders of the Court as to
the disposal of the same.
Provided that where the property seized under
Sub-Section (1) is subject to speedy and
natural decay and if the person entitled to the
possession of such property is unknown or
absent and the value of such property is less
than five hundred rupees, it may forthwith be
sold by auction under the orders of the
Superintendent of Police and the provisions of
sections 457 and 458 shall, as nearly as may
be practicable, apply to the net proceeds of
such sale.
11.6. Insofar as criminal matters are concerned in the
State of Karnataka the same are also
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regulated as regards procedure by the
Karnataka Criminal Rules of Practice, 1968 (for
short, 'Rules'). Chapter VII thereof deals with
enquiry and trial before the Magistrate or Court
of Session. Part C of the said Chapter deals
with documents.
11.7. Rule 12 and 14 of the Karnataka Criminal Rules
of Practice, 1968 reads as under:
12. Only documents admitted in evidence shall
be marked as Exhibits and they shall be
serially numbered as hereinafter provided.
14. Subject to any order passed by the Court in
that behalf, any person, whether a party to a
proceeding or not, desirous of receiving back
any document produced by him in the
proceedings and placed on the record shall,
unless the document is impounded under
Section 104 of the Code, be entitled to
receive back the same;
(a) where the proceeding is one in which an
appeal is not allowed, when the proceeding
has terminated; and
(b) where the proceeding is one in which an
appeal is allowed, when the Court is satisfied
that the time for preferring the appeal has
elapsed and that no appeal has been
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preferred, or, if an appeal has been preferred,
when the appeal has been disposed of.
11.8. In terms of Rule 12 of the Rules, it's only the
documents which are admitted in evidence
which will be marked as exhibits. In terms of
Rule 14 of the Rules, any person whether a
party to the proceedings or not desirous of
receiving back any document produced by him
and placed on record shall be entitled to receive
back the same upon the termination of the
proceedings or in the event of an appeal being
filed on the culmination of the appeal. Thus, in
terms of Rule 14 of the Rules, the Corporation
can make an application to the concerned Court
for receiving back the documents after
culmination of the proceedings but that would
mean waiting till the end of the proceedings
which could delay the matter and would bring
all other actions to a stand-still till then.
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11.9. The documents could also be property in a
criminal proceedings. Part B of Chapter X of
the Rules deals with property more particularly
Rule 10, 11, 13 and 15 thereof. In terms of
Rule 10 of the Rules, whenever a seizure of
property made under Section 102 of Cr.P.C.,
such seizure shall be reported to the Magistrate
at once who shall make such orders as may be
required in that regard. In terms of Rule 13 of
the Rules, the said documents may be kept in
safe custody.
11.10. Chapter XIII of the Rules deals with records.
Section 1 deals with arrangement, Section 2A
deals with transmission, Section 2B with
maintenance, Section 3 with Preservation and
Destruction of records and Section 4 with
Search of records.
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11.11. In terms of Rule 35 thereof, where a
Government servant is an accused person and
the Head of such Government Department
wishes to obtain copies of deposition, exhibits
or judgment in that case, he could make an
application to the Presiding Judge or Magistrate
and send an officer or clerk for that purpose
who would be permitted to take copies of the
relevant documents.
11.12. Thus, if any officer of the BBMP were to be
arrayed as an accused in a proceeding before
any Court, the Head of Department to which
such person belongs to and/or the Chief
Commissioner could always make an application
for copies.
11.13. Chapter XIV of the Rules deals with copies. In
terms of Rule 1 every application for copy
should be made to a Court having custody of
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the records. In terms of Rule 2, parties to a
case are entitled to at any stage of the
proceedings to obtain copies of the records
including exhibits which have been admitted in
evidence, which shall be certified and delivered
to such applicant. Thus, reading Rule 35 of
Chapter XIII in conjunction with Chapter XIV, it
is seen that the Head of the Department can
make an application for copies, which shall be
processed and made available to such Head of
the Department. The said Rules also provide
for a third party to make similar application
which would have to be considered by the
Magistrate and only if the Magistrate were to
allow the same, the application would be
processed.
11.14. The above would indicate that the
Departmental Head or Chief Commissioner of
the Corporation could always seek for copies
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from a Court so also could an accused. In the
present case, the petitioner also being an
accused, the petitioner could make such an
application.
11.15. Instead of making such an application, the
Corporation as also the petitioner have been
blaming each other and neither having obtained
copies to process the bills, the petitioner is
before this Court seeking for aforesaid reliefs.
11.16. Law always provides for a remedy and the
manner of obtaining the remedy. It is for the
parties to avail such remedy by following the
due process.
11.17. Thus, I answer Point No.1 by holding that the
Corporation cannot without taking any steps to
secure copies of the documents seized from it
contend that in the absence of those documents
or on account of the seizure of the documents,
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the bills submitted by the petitioner cannot be
processed.
12. Answer to Point No.2: What are the modes and
methodologies available for a party to obtain
certified copies which could be submitted to the
BBMP for due consideration?
12.1. Smt.Namita Mahesh, learned counsel for
respondents No.2 to 6, at this stage, submits
that if the petitioner were to obtain certified
copies from the Court, the said certified copies
would be processed by the Corporation without
insisting on production of originals. If that be
so, then as dealt with Answer to Point No.1
above, the petitioner can always make an
application to the concerned Court for issuance
of certified copies, receive such certified copies,
for submission to the Corporation for
processing.
12.2. In the unlikely event of the said Court not
issuing certified copies, then the Corporation
could approach the said Court either for
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certified copies or for taking inspection of the
documents in order to process the bills
submitted by any contractor like the petitioner.
Thus, even a contractor would not be required
to keep quite awaiting return of the documents
after culmination of the proceedings but can
make an application for issuance of certified
copies and produce it before the jurisdictional
authority who processes the bills of the
petitioner.
12.3. Thus, I answer Point No.2 by holding that as
aforestated there are modes and methodologies
available for a party to obtain certified copies to
submit the same to the BBMP for due
consideration.
13. Answer to point No.3: What Order?
13.1. In the above circumstances having come to a
conclusion that either Corporation or a
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contractor like the petitioner could approach the
Court seeking for certified copies, either of
them are free to do so. However, on account of
the submission made by Smt.Namita Mahesh,
which is acceptable to Sri.A.Nagarajappa,
learned counsel for the petitioner, I pass the
following:
ORDER
i. The petitioner to approach the jurisdictional
Court seeking for certified copies of the
relevant documents that the petitioner
wishes to rely upon.
ii. On furnishing of such certified copies, the
petitioner to furnish the same to BBMP
which shall be considered and acted upon by
the BBMP.
iii. In the event of application made by the
petitioner being rejected by the Court for
any reason, then in such circumstance, the
Corporation is directed to either make an
application for certified copies and/or an
application for inspection of the documents
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to process bills submitted, which the said
Court would be duty bound to do so.
Needless to say, while processing the said
bills, the allegation made against the
petitioner in the pending criminal
proceedings will also have to be taken into
consideration and those aspects would be
subject to the result of the pending criminal
proceedings.
iv. With the above observations, the Writ
Petition stands disposed.
Sd/-
JUDGE
PRS
