Karnataka High Court
M/S Dreams Of Fountains Pvt Ltd vs Deputy Commissioner / Returning ... on 28 May, 2024
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
Reserved on : 24.04.2024
Pronounced on : 28.05.2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.26881 OF 2023 (GM - RES)
BETWEEN:
M/S. DREAMS OF FOUNTAINS PVT. LTD.,
FORMERLY KNOWN AS:
M/S. CHILUME ENTRIPRICES PVT. LIMITED AND
DAP HOMBALE PVT. LTD.,
COMPANY REGISTERED UNDER
THE PROVISION OF COMPANIES ACT, 2013,
HAVING ITS REGISTERED OFFICE AT
NO.161/1, 2ND MAIN, 17TH CROSS,
BEHIND SHEKAR NURSING HOME,
MALLESHWARAM, BENGALURU - 560 003,
REPRESENTED BY ITS DIRECTOR,
SHRUTHI B.
... PETITIONER
(BY SRI G.V.CHANDRASHEKAR, SR.ADVOCATE A/W
SRI SANJAY NAIR, ADVOCATE)
AND:
1. DEPUTY COMMISSIONER / RETURNING OFFICER
24-BENGALURU NORTH MP CONSTITUENCY,
2
BENGALURU URBAN DISTRICT,
BENGALURU - 560 009.
2. ASSISTANT RETURNING OFFICER (ARO)
150-YALAHANKA CONSTITUENCY,
MINI VIDHANA SOUDHA,
YALAHANKA,
BENGALURU - 560 064.
3. ASSISTANT RETURNING OFFICER (ARO)
152-BYTARAYANAPURA CONSTITUENCY,
BYTARAYANAPURA,
YALAHANKA ZONE,
BENGALURU - 560 092.
4. ASSISTANT RETURNING OFFICER (ARO)
153-YESHWANTHAPURA CONSTITUENCY,
NO.569 AND 570, 2ND FLOOR,
KENGERI SATELLITE TOWN,
BENGALURU - 560 060.
5. ASSISTANT RETURNING OFFICER (ARO)
155-DASARAHALLI CONSTITUENCY,
BBMP DASARAHALLI ZONE OFFICE BUILDING,
HESARUGHATTA MAIN ROAD,
BAGALAGUNTE,
BENGALURU - 560 073.
6. ASSISTANT RETURNING OFFICER (ARO)
174-MAHADEVAPURA CONSTITUENCY,
BENGALURU EAST TALUK, K.R.PURA,
BENGALURU - 560 036.
7. ASSISTANT RETURNING OFFICER (ARO)
176-BENGALURU SOUTH CONSTITUENCY,
BENGALURU SOUTH SUB-DIVISION,
KANDHAYA BHAVANA,
2ND FLOOR, K.G.ROAD,
3
BENGALURU - 560 009.
8. ASSISTANT RETURNING OFFICER (ARO)
177-ANEKAL CONSTITUENCY,
ANEKAL TALUK, ANEKAL,
BENGALURU - 562 106.
9. TAHASILDAR/ELECTORAL REGISTRATION OFFICER (ERO)
150-YALAHANKA CONSTITUENCY,
BYTARAYANAPURA,
YALAHANKA ZONE,
BENGALURU - 560 092.
10 . REVENUE OFFICER/ELECTORAL
REGISTRATION OFFICER (ERO)
152- BYTARAYANAPURA CONSTITUENCY,
BYTARAYANAPURA,
YALAHANKA ZONE,
BENGALURU - 560 092.
11 . ELECTORAL REGISTRATION OFFICER (ERO)
153-YESHWANTHAPURA CONSTITUENCY,
NO.569 AND 570, 2ND FLOOR,
KENGERI SATELLITE TOWN,
BENGALURU - 560 060.
12 . TAHASILDAR/ELECTORAL REGISTRATION OFFICER (ERO)
155-DASARAHALLI CONSTITUENCY,
BBMP DASARAHALLI ZONE OFFICE BUILDING,
HESARUGHATTA MAIN ROAD,
BAGALAGUNTE,
BENGALURU - 560 073.
13 . TAHASILDAR/ELECTORAL REGISTRATION OFFICER (ERO)
171-MAHADEVAPURA CONSTITUENCY,
BENGALURU EAS TALUK, K.R.PURA,
BENGALURU - 560 036.
4
14 . TAHASILDAR/REVENUE OFFICER/ELECTORAL
REGISTRATION OFFICER (ERO)
176-BENGALURU SOUTH CONSTITUENCY,
BENGALURU SOUTH SUB-DIVISION,
KANDHAYA BHAVAN, 2ND FLOOR,
K.G.ROAD,
BENGALURU - 560 009.
15 . TAHASILDAR/ELECTORAL REGISTRATION OFFICER (ERO)
177-ANEKAL CONSTITUENCY,
ANEKAL TALUK, ANEKAL,
BENGALURU - 562 106.
16 . CHIEF ELECTION COMMISSIONER
ELECTION COMMISSION OF INDIA,
NIRVACHAN SADAN, ASHOKA ROAD,
NEW DELHI - 110 001.
17 . CHIEF ELECTORAL OFFICER KARNATAKA
NIRVACHANA NILAYA,
SHESADRI ROAD,
AMBEDKAR VEEDHI,
BENGALURU - 560 001,
EMAIL: ceo [email protected]
18 . ADDITIONAL DISTRICT ELECTORAL OFFICER (ADC)
BENGALURU URBAN DISTRICT,
BENGALURU - 560 009.
... RESPONDENTS
(BY SRI KIRAN KUMAR, HCGP FOR R-1 TO R-15;
SRI SHARATH DODWAD, CGC FOR R-16 TO R-18)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO a) DIRECTING
THE R1 TO CONSIDER AND DISPOSE OF THE APPEAL LETTER
DATED 06/11/2023 (ANNEXURE-L) FOR RELEASING THE PAYMENTS
AS AGAINST THE BILLS SUBMITTED BY THE PETITIONER IN TERMS
5
OF THE PROCEEDINGS BEFORE THE R1 DATE 13/12/2019
(ANNEXURE -H) FOR THE SUM OF INR 10,81,47,606/- (RUPEES
TEN CRORE EIGHTY ONE LAKH FORTY SEVEN THOUSAND SIX
HUNDRED SIX ONLY) ALONG WITH AN INTEREST OF 18 PERCENT
PER ANNUM FORM THE DATE IT IS DUE TILL THE DATE OF
PAYMENTS IN THE WORK ORDER DTD 02.03.2019 VIDE
ANNEXURE-E2; b) DIRECT THE R1 TO TAKE EFFECTIVE STEPS AND
FURTHER ACTION PURSUANT TO THE TERMS OF PROCEEDINGS
BEFORE THE R1 DATED 13/12/2019 (ANNEXURE-H) AND
CONSEQUENTLY DIRECT THE R1 TO RELEASE THE BALANCE SUM
OF RS. 10,81,47,606/- (RUPEES TEN CRORE EIGHTY ONE LAKH
FORTY SEVEN THOUSAND SIX HUNDRED SIX ONLY) ALONG WITH
AN INTEREST OF 18 PERCENT PER ANNUM FORM THE DATE IT IS
DUE TILL THE DATE OF PAYMENTS IN THE WORK ORDER DATE
02.03.2019 VIDE ANNEXURE-E2.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 24.04.2024, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioner is before this Court seeking the following
prayers:
"a. Issue a writ of mandamus directing the Respondent Nos.1,
15, 16, 17 and 18 to consider and dispose of the Appeal
Letter dated 6-11-2023 (Annexure-L) for releasing the
payments as against the bills submitted by the petitioner in
terms of the proceedings before the Respondent No.1 dated
13-12-2019 (Annexure-H) for the sum of INR
10,81,47,606/- (Rupees ten crore eighty one lakh forty
seven thousand six hundred six only) along with an interest
of 18% per annum; from the date it is due till the date of
payments in the work order dated 02-03-2019 vide
Annexure-E2.
b. Direct the Respondent Nos.1, 15, 16, 17 and 18 to take
effective steps and further action pursuant to the terms of
proceedings before the Respondent No.1 dated 13-
12-2019 (Annexure-H) and consequently direct the
Respondent No.1 to release the balance sum of INR
10,81,47,,606/- (Rupees ten crore eighty one lakh forty
seven thousand six hundred six only) along with an interest
of 18% per annum from the date it is due till the date of
payments in the work order dated 02-03-2019 vide
Annexure-E2.
c. Grant such other reliefs as may be found expedient in the
interest of justice and equity."
2. Heard Sri G.V. Chandrashekar, learned senior counsel
appearing for the petitioner, Sri Vikram Huilgol, learned Additional
Advocate General and Sri Kiran Kumar, learned High Court
Government Pleader appearing for respondents 1 to 15 and
Sri Sharath Dodwad, learned Central Government Counsel
appearing for respondents 16 to 18.
3. Facts, in brief, germane are as follows:-
The petitioner is said to be a Company registered under the
Companies Act, 2013 and is engaged in the business of executing
Government tenders across the State and possesses expertise in
catering to supply, service and procurement of election works. The
issue in the lis relates to certain works undertaken by the petitioner
during the Parliamentary Elections of 2019. A notice inviting tender
concerning elections for 7 assembly constituencies in Bangalore
Urban District was issued terming it to be short term
quantitative/notification on 12-02-2019. The tender was for supply
of three meals a day including snacks, mineral water, coffee/tea to
the election staff, Meeting and Training (two times) and etc., The
petitioner who participated in the aforesaid short term tender
emerges as the successful bidder, as it was in the least bid quote.
It was awarded work order, as aforesaid , on 02-03-2019. The work
order among other things included the following:
"installation of CCTV, webcasting, installing of computer,
printer, check posts, installation of strong room, training
equipment, racks, lights, generators, LED walls, sound systems,
computers, laptops, construction of temporary offices, electrical
wirings, internet connection, TV Dish, TV, Air Conditioner, Bio
Toilets, skilled and unskilled labours, stationary and all items for
facilitating election mechanism across 7 constituency in
Bangalore."
Manifold functions were directed to be undertaken by the petitioner.
The petitioner commenced the work on 10-03-2019 and gathered
manpower and all other necessities for execution of work so
awarded in terms of short term tender by the Competent Authority.
The petitioner, after conclusion of elections in the year 2019,
submitted its bills in complete detail raising 348 invoices, which
were all certified by the Assistant Returning Officer and Electoral
Registration Officer in terms of Clause 2 of the Work Order dated
02-03-2019.
4. On 09-12-2019, a meeting was called wherein the 1st
respondent/Deputy Commissioner and Returning Officer, at the
relevant point in time, sought submission of bills among other
things. The petitioner avers in the petition that an amount of
`15,01,78,000/- was claimed by the petitioner. This was further
reduced to `14,21,08,000/- on the request of the Deputy
Commissioner subject to the condition that the payment would be
made within 7 days. All these formed part of proceedings dated
13-12-2019. What was handed over to the petitioner in two
installments was an amount of `3/- crores and odd and the
petitioner was still to be paid in a sum of `10,81,47,606/-.
Representations have been submitted immediately after completion
of elections and all have gone in vain and, therefore, the petitioner
is knocking at the doors of this Court, in the subject petition,
seeking a direction for release of admitted amounts in terms of the
tender.
5. The learned senior counsel Sri G.V. Chandrahsekar would
vehemently contend that the petitioner has executed the work in
terms of the contract awarded to it and has not, at any point in
time, violated any directions during the elections and all were found
to be satisfactory. When it came to making payment, the State is
now dodging the issue on the ground that there are some audit
objections and audit report is yet to be cleared and, therefore, the
amount cannot be released in favour of the petitioner. The learned
senior counsel would submit that the petitioner had raised loans 5
years ago mortgaging certain of its properties to execute the
contract. Notices under the SARFAESI Act are issued by the Banks
for non-payment of dues solely on account of the State not
adhering to the work order so issued. It is the case of the
petitioner that it is not charging a single rupee beyond the work
order.
6. The learned Central Government Counsel representing the
Election Commission Sri Sharath Dodwad would submit that the
Commission has already given its free nod to release the amount
and has nothing to say with the release of the amount, in fact, at
the hands of the State. Even on interim order being passed by this
Court, the Election Commission has directed that if payment is not
made it would be amounting to contempt.
7. The learned Additional Advocate General Sri Vikram Huilgol
representing the State would vehemently refute the submissions of
the petitioner. According to him not a rupee need be paid to the
petitioner. It is his submission, taking this Court through the
objections or the documents produced, seeking to demonstrate that
whatever the petitioner was entitled to, is all granted to it and the
claim of the petitioner is in the realm of seriously disputed
questions of fact, for which the petitioner has to approach the civil
Court and this Court would not enter into the disputed questions of
fact. It is his submission that the audit has serious objections to the
claim of the petitioner, as the petitioner has not supplied food to so
many members as it is now wanting to project.
8. The learned senior counsel for the petitioner, in reply,
would take this Court through plethora of invoices. At every point
in time they were countersigned by the Deputy Commissioner and
the State is now wanting to wash off its hands by not paying the
bills of the petitioner. 5 years have passed by, but the petitioner is
still to get the amount so demanded.
9. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
10. The afore-narrated facts are all a matter of record. A
notice inviting tender comes to be issued terming it to be a short
term tender for supply of various items as indicated hereinabove.
The tenders dated 12-02-2019 were issued, one of which reads as
follows:
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The tenders were issued all for the purpose of certain works to be
undertaken during the elections. The petitioner emerges as the
lowest bidder and a work order is issued in favour of the petitioner
on 2-03-2019. One such work order so issued reads as follows:
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2) ªÉÄîÌAqÀ CAPÀtzÀ°è w½¹gÀĪÀAvÉ HlzÀ ªÀåªÀ¸ÉÜAiÀÄ£ÀÄß f¯Áè¢üPÁjUÀ¼À PÀbÉÃj,
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¨ÁålgÁAiÀÄ£À¥ÀÄgÀ, 153-AiÀıÀªÀAvÀ¥ÀÄgÀ, 155-zÁ¸ÀgÀºÀ½î, 174-ªÀĺÀzÉêÀ¥ÀÄgÀ, 176-
¨ÉAUÀ¼ÀÆgÀÄ zÀQët ªÀÄvÀÄÛ 177-D£ÉÃPÀ¯ï «zsÁ£À¸À¨Ás PÉëÃvÀæUÀ½UÉ £ÉÃgÀªÁV ¸ÀgÀ§gÁdÄ
ªÀiÁr, ¸ÀA§AzsÀ¥ÀlÖ ªÀÄvÀzÁgÀgÀ £ÉÆÃAzÀuÁ¢üPÁjUÀ½AzÀ zÀÈrüÃPÀgÀt ¥ÀvÀæ ¥ÀqÉzÀÄ F
PÀbÉÃjUÉ ¸À°è¸ÀĪÀÅzÀÄ. ¸ÀgÀ§gÁdÄ ªÀiÁqÀ®Ä ¥ÀævÉåÃPÀªÁV ¸ÁUÁtÂPÉ ªÉZÑÀ
¥ÁªÀw¸À¯ÁUÀĪÀÅ¢®è.
3) MAzÀÄ ªÉÃ¼É ºÉZÀÄѪÀjAiÀiÁV HlzÀ ªÀåªÀ¸ÉÜ ªÀiÁqÀ¨ÉÃPÁzÀ°è, £ÀªÀÄÆ¢¹gÀĪÀ zÀgÀzÀ°èAiÉÄÃ
¸ÀgÀ§gÁdÄ ªÀiÁqÀĪÀÅzÀÄ.
4) ¸ÁªÀÄVæUÀ¼À£ÀÄß ¸ÀgÀ§gÁdÄ ªÀiÁqÀĪÀ ªÉÆzÀ®Ä AiÀiÁªÀÅzÉà jÃwAiÀÄ ªÀÄÄAUÀqÀ ºÀt ¥ÁªÀw
ªÀiÁqÀ¯ÁUÀĪÀÅ¢®è. J¯Áè ¸ÁªÀÄVæUÀ¼À£ÀÄß DAiÀiÁ «zsÁ£À¸À¨Ás PÉëÃvÀæUÀ½UÉ ¸ÀgÀ§gÁdÄ
ªÀiÁrzÀ £ÀAvÀgÀªÀµÉÖà ©¯ï£À ¥ÀÆwð ªÉƧ®UÀÄ ¥ÁªÀw¸À¯ÁUÀĪÀÅzÀÄ.
5) ¸ÀgÀ§gÁdÄ ªÀiÁqÀ¯ÁzÀ ¸ÁªÀÄVæUÀ¼À°è AiÀiÁªÀÅzÉà ¯ÉÆÃ¥À PÀAqÀħAzÀ°è ºÁUÀÆ ¸ÀgÀ§gÁdÄ
ªÀiÁqÀ¯ÁzÀ ¥ÀæªÀiÁtªÀÅ CªÀ±ÀåPÀvÉVAvÀ PÀrªÉÄAiÀiÁzÀ°è, CAvÀºÀªÀÅUÀ¼À£ÀÄß DAiÀiÁ «zsÁ£À¸À¨Ás
PÉëÃvÀæUÀ½UÉ ¸ÀgÀ§gÁdÄzÁgÀgÀ ¸ÀéAvÀ Rað¤AzÀ ¤UÀ¢vÀ ¸ÀªÀÄAiÀÄzÉƼÀUÉ ªÀÄvÉÆÛªÄÉ ä
¸ÀgÀ§gÁdÄ ªÀiÁqÀvÀPÀÌzÀÄÝ ºÁUÀÆ ºÉZÀÄѪÀjAiÀiÁV ¥ÀævÉåÃPÀ ºÀtªÀ£ÀÄß ¥ÁªÀw
ªÀiÁqÀ¯ÁUÀĪÀÅ¢®è."
The work order is issued by the 1st respondent/Deputy
Commissioner. Elections got over. The petitioner then demands
amounts that were spent during the elections, which according to
the petitioner was `14,21,08,000. Proceedings were held on 13-12-
2019 for payment of bills submitted by the petitioner. The
proceedings are as follows:
"... ... ...
¢£ÁAPÀ: 03-12-2019gÀAzÀÄ ªÀiÁ£Àå ªÀÄÄRå ZÀÄ£ÁªÀuÁ¢üPÁVgÀ¼ÀÄ, PÀ£ÁðlPÀ gÀªÀgÀ
PÀbÉÃjAiÀÄ°è £ÀqÉzÀ ¸À¨sÉAiÀÄ°è ¸ÀzÀj ºÉZÀÄѪÀj C£ÀÄzÁ£ÀzÀ ¥Àæ¸ÁÛªÀ£ÉAiÀÄ£ÀÄß ¥Àj²Ã°¸À¯ÁVzÀÄÝ,
PÉÆÃjgÀĪÀ ªÉÆvÀÛªÀÅ ºÉZÁÑVgÀĪÀ PÁgÀt, ¸ÀzÀj ¥Àæ¸ÁÛªÀ£ÉAiÀÄ£ÀÄß ªÀÄvÉÆÛªÉÄä ¥Àj²Ã°¹,
ªÀgÀ¢AiÀÄ£ÀÄß ¸À°è¸ÀĪÀAvÉ ¤zÉÃð²gÀÄvÁÛgÉ.
CzÀgÀAvÉ, ºÁdjzÀÝ J¯Áè ªÉAqÀgïìUÀ¼À ¸ÀªÀÄÄäRzÀ°è CªÀgÀªÀgÀÄ ºÁdgÀÄ¥Àr¹gÀĪÀ
©¯ïUÀ¼À£ÀÄß ªÀÄvÉÆÛªÉÄä ¥Àj²Ã°¹, PÉ®ªÀÅ ªÉAqÀgïìgÀªÀgÀ ©¯ïUÀ¼À°è£À ªÉÆvÀÛªÀ£ÄÀ ß
¤AiÀÄ«ÄvÀUÉƽ¸ÀĪÀ §UÉÎ ZÀað¸À¯Á¬ÄvÀÄ.
DzÀgÉ, ºÁdjzÀÝ J¯Áè ªÉAqÀgïìUÀ¼ÀÄ F PÀÄjvÀÄ vÀªÀÄä C¼À®£ÀÄß ªÀåPÀÛ¥Àr¹zÀÄÝ, F ¥ÉÊQ
PÉ®ªÀgÀÄ ªÀiÁvÀ£Ár, ©¯ïUÀ¼À ¥ÁªÀwAiÀÄÄ «¼ÀA§ªÁVgÀĪÀÅzÀjAzÀ, F ºÀAvÀzÀ°è ©¯ïUÀ¼À°è£À
ªÉÆvÀÛªÀ£ÀÄß ¤AiÀÄ«ÄvÀUÉƽ¸ÀĪÀÅzÀjAzÀ vÀªÀÄUÉ £ÀµÀÖªÁUÀÄvÀÛzÉ JAzÀÄ DPÉëÃ¥ÀuÉ ªÀåPÀÛ¥Àr¹zÀgÀÄ.
£ÀAvÀgÀ ¸ÀzÀj «µÀAiÀÄzÀ PÀÄjvÀÄ ¸ÀÄ¢ÃWÀðªÁV ZÀað¸À¯ÁV, J¯Áè ªÉAqÀgïìUÀ¼ÀÄ C®à
ªÉÆvÀÛªÀ£ÀÄß PÀrvÀUÉƽ¸À®Ä vÀªÀÄä ¸ÀºÀªÀÄvÀ ¸ÀÆa¹, 07 ¢£ÀUÀ¼ÉƼÀUÁV ¨ÁQ EgÀĪÀ ©¯ïUÀ¼À£ÄÀ ß
¥ÁªÀw¸ÀĪÀÅzÁzÀ°è ªÀiÁvÀæ, ©¯ïUÀ¼À°è£À ªÉÆvÀÛªÀ£ÀÄß PÀ¤µÀÖ ªÀÄlÖzÀ°è ¤AiÀÄ«ÄvÀUÉƽ¸À§ºÀÄzÀÄ
JA§ µÀgÀwÛUÉ M¼À¥ÀlÄÖ ªÉAqÀgïìUÀ¼ÀÄ CªÀgÀ M¦àUÉ ¸ÀÆa¹gÀÄvÁÛgÉ.
ºÁdjzÀÝ J¯Áè ªÉAqÀgïìUÀ¼À ¸ÀºÀªÀÄvÀzÀ ªÉÄÃgÉUÉ, F PɼÀPÀAqÀ ¥ÀnÖAiÀÄ°è «ªÀj¸ÀĪÀAvÉ,
¨ÁQ EgÀĪÀ ©¯ïUÀ¼À ªÉÆvÀÛªÀ£ÀÄß ¤AiÀÄ«ÄvÀUÉƽ¸À¯Á¬ÄvÀÄ.
... ... ...
ªÀÄÄAzÀĪÀgÉzÀÄ, ºÁdjzÀÝ ªÉAqÀgïìUÀ¼ÀÄ ªÀÄvÉÆÛªÉÄä ªÀiÁvÀ£ÁqÀÄvÁÛ, ¨ÉAUÀ¼ÀÆgÀÄ £ÀUÀgÀ
f¯Áè ªÁå¦ÛAiÀÄ 07 «zsÁ£À¸À¨Ás PÉëÃvÀæUÀ¼À°è MlÄÖ 2997 ªÀÄvÀUÀmÉÖUÀ½zÀÄÝ, f¯Áè¢üPÁjUÀ¼À
PÀbÉÃj¬ÄAzÀ mÉAqÀgï PÀgÉzÀ ªÉüÉAiÀÄ°è £ÀªÀÄÆ¢¸À¯ÁzÀ zÀgÀUÀ¼À C£ÀĸÁgÀ ©¯ïUÀ¼À£ÀÄß
ºÁdgÀÄ¥Àr¸À¯ÁVzÀÄÝ, ºÁdgÀÄ¥Àr¹gÀĪÀ ©¯ïUÀ¼À°è 18% f.J¸ï.n ªÉÆvÀÛ gÀÆ.3,38,37,586/-
UÀ¼ÀÄ ¸ÀºÀ ¸ÉÃjgÀÄvÀÛzÉ JAzÀÄ w½¹gÀÄvÁÛgÉ ºÁUÀÆ £ÀA.24-¨ÉAUÀ¼ÀÆgÀÄ GvÀÛgÀ ¯ÉÆÃPÀ¸À¨Ás PÉëÃvÀæ
ªÁå¦ÛUÉ ©.©.JA.¦ ªÁå¦ÛAiÀÄ 05 «zsÁ£À¸À¨Ás PÉëÃvÀæUÀ¼ÀÄ M¼ÀUÉÆArzÀÄÝ, MlÄÖ 08 «zsÁ£À¸À¨Ás
PÉëÃvÀæUÀ¼À ªÀÄvÀJtÂPÉ PÉÃAzÀæ ªÀÄvÀÄÛ ¨sÀzÀævÁ PÉÆoÀrUÀ¼À ¤ªÀiÁðt ºÁUÀÆ ªÀÄvÀJtÂPÉ ¢£ÀzÀAzÀÄ
CªÀ±Àå«zÀÝ J¯Áè jÃwAiÀÄ PÁAiÀÄðUÀ¼À£ÀÄß ¸ÀºÀ f¯Áè¢üPÁjUÀ¼À ªÀw¬ÄAzÀ ¤«Äð¸À¯ÁVgÀÄvÀÛzÉ
JAzÀÄ w½¹gÀÄvÁÛgÉ.
ªÉÄîÌAqÀ ¥ÀnÖAiÀÄ°è «ªÀj¹gÀĪÀAvÉ, MlÄÖ gÀÆ.18,79,86,593/-UÀ¼À ºÉZÀÄѪÀj
C£ÀÄzÁ£ÀªÀ£ÀÄß PÉÆÃj, ªÀiÁ£Àå ªÀÄÄRå ZÀÄ£ÁªÀuÁ¢üPÁjUÀ¼ÀÄ, PÀ£ÁðlPÀ gÀªÀjUÉ ¥Àæ¸ÁÛªÀ£É
¸À°è¸ÀĪÀÅzÁV ºÁdjzÀÝ J¯Áè ªÉAqÀgïìUÀ½UÉ w½¸À¯Á¬ÄvÀÄ.
ªÀAzÀ£ÉUÀ¼ÉÆA¢UÉ ¸À¨ÉsAiÀÄ£ÀÄß ªÀÄÄPÁÛAiÀÄUÉƽ¸À¯Á¬ÄvÀÄ."
The Deputy Commissioner approves the amounts so indicated which
included the amount payable to the petitioner. No payment comes
about as was demanded. About `3/- crores and odd was paid to the
petitioner pursuant to the proceedings supra. What remained was
payment of `10,81,47,606. These are borne out from invoices.
The petitioner submits representations for release of such payment
between 20-03-2020 and 31-03-2022 and what was released
considering the representations was the staggered amount which all
formed part of `3/- crores and odd paid to the petitioner. The
petitioner, again, represents to the State for release of remaining
funds through several representations, one of which dated
06-11-2023, reads as follows:
"Sub:-150-Yalahanka, 152-Bytarayanapura, 153-
Yeshwanthapura, 155-Dasarahalli, 174-
Mahadevapura, 176-Bangalore South and 177-
Anekal assembly constituencies under the
jurisdiction of Bangalore Urban District Lok Sabha
Constituencies 2019- Lok Sabha Elections 2019.
Pending payments for various commodity services
like construction of Checkpost, Checkpost CCTV,
CCTV for strong room security, daily Food & Food
Items Supply for on-duty election staff and other
election functions, construction of temporary
election office, first and second level training.
commissioning and mustering of electronic voting
machines, awning equipment required for de-
mustering occasions and Regarding payment of
outstanding bills for services provided by daily
wage workers, stationery etc."
The contents are as follows:
"In relation to the above matter, the work of the Lok
Sabha Elections 2019 was previously discus in 7 assembly
constituencies various commodity services like construction of
Checkpost, Checkpost CCTV, CCTV for strong Room security,
daily Food & Food Items Supply for on-duty election staff and
other election functions, construction of temporary election
office, first and second level training, commissioning and
mustering of electronic voting machines, awning equipment
required for de-mustering occasions and daily wage workers,
stationery etc. The corresponding expenditure bills have been
submitted to their office. The submitted bills are listed below....."
and the requisition is as follows:
".... .... ....
Construction of Election Check post, Construction of
Temporary Election Office, Commissioning of Electronic Voting
Machines, First and Second Stage Training and Mustering,
Shades, Chairs, Tables, Floor Mats, Generators required for the
occasion of de-mustering, Sidewall, LED lights, fan and daily
Food & Food items Supply for election staff and other election
programs, daily wage workers, construction of security room,
supply of stationery, security check post CCTV and strong room
CCTV other necessary equipment's have been successfully
supplied as per requirement. Under the direction of the
concerned Assistant Returning Officers under the direction of the
Deputy Commissioner's office. The Delivery challans are
received on the date of supply and the bills are authenticated by
the Registrars of Voters and Assistant Returning Officers
concerned for the bills supplied and the authenticated bills are
submitted to the District Collector's office.
From the office of the Collector dated: 26-06-2019 a
demand proposal for additional grant has been submitted
to the Chief Electoral Officer in which a proposal has been
submitted for release of outstanding bills and a meeting
was held in the Collector's Hall Date: 13-12-2019 at
11:30 am in the presence of the vendors of various
organizations who had done the election work and the
Collector.
In the meeting all the Vendors discussed about
fixing the amount in the bills, but all the Vendors present
expressed their lament about the delay in payment and
objected that fixing the amount of the bills at this stage
would be a loss to them, then discussed at length and
suggested that we agree to deduct a small amount from
the amount of bills submitted. Our organization has
agreed and the organization present in the meeting has
also agreed on the condition that the bills can be
regularized at a minimum level only if the outstanding
bills are paid within 7 days. Then the Collector's office re-
verification of the grant proposal letter number: chuna
[lo.sa] [grant]CR/29/2018-19 Dated: 16-12-2019 is
written and the grant demand is submitted. In
furtherance of the said meeting dated 16.12.2019, partial
amount was last released on 31.03.2022.
Almost a year haves passed since the election,
despite 10 appeals from our organization, the
outstanding bills have not been paid and no response has
been received from you. Therefore, in order to release the
outstanding bills, they have been informed that the due
amount of Rs.10,81,47,606/- should be released as listed
above.
This relationship requires our organization
financially to pay interest on bank loans and other loans
borrowings and government commercial taxes and to pay
bills to sub vendors who have supplied goods and
services to our organization. During covid-19 our
organization faced financial loss and got into debt, the
root cause of all this is non-payment of bills for goods
and services provided by our organization. Therefore,
through this letter, we are submitting an appeal to your
department to pay the outstanding bills due to our
organization within 7 days under the financial rules
specified in the government regulations."
(Emphasis supplied)
No amount is received as demanded. Therefore, the petitioner is
before this Court in the subject petition.
11. The State has filed its statement of objections refuting the
submissions or the claim of the petitioner. It takes recourse to a
crime registered against the petitioner in Crime No.276 of 2022 and
217 of 2022 registered on 17-11-2022. Barring these annexures
nothing was produced along with the statement of objections. This
Court, owing to the circumstance of non-payment for the last 5
years, passed certain orders directing payment to the petitioner.
The order dated 27-03-2024 reads as follows:
"ORDER
The petitioner is before this Court seeking a direction by
issuance of a writ in the nature of mandamus to concerned
respondents to release the payments against the bills submitted
in terms of the proceedings dated 13.12.2019. The bills were
submitted for an amount of Rs.10,81,47,606/- along with
interest.
The work is undertaken at the time of the previous
elections. Five years had passed by, but the bills of the
petitioner are not settled.
The learned counsel for the respective respondents would
submit that the bills are payable, but are pointing fingers at
each other as to who has to pay the amount.
The amount that is already disbursed is paid by the
Election Commission to the State and the State appears to have
disbursed the same in favour of the petitioner.
The petitioner who has spent the money is waiting for the
last five years.
Therefore, it is for the State or the Election Commission,
as the case would be, to comply the proceedings dated
13.12.2019, in the next two weeks.
The petitioner shall receive the said amount without
prejudice to his claim, as he is granted in the case at hand,
which shall be considered at a later point in time.
The said direction is being issued on a peculiar
circumstance that the petitioner is facing proceedings under the
SARFAESI Act for the loans that he has availed to execute the
job five years ago.
Therefore, it does not behove the status of the State to
dodge a contractor, who has undertaken the contract, which is
acknowledged by the Authorities in the year 2019 itself.
It is in that light, a direction is issued to release the
payment that is left unpaid as on today, by the next two weeks.
List this matter on 18.04.2024."
This Court, after hearing all the parties, has passed the aforesaid
order. The amount that was left unpaid was directed to be paid
within two weeks. Then comes an application by the State seeking
modification of the order. The modification is sought on the ground
that payments that were to be made were already made. What is
added in the list of payment is the payment made pursuant to an
earlier tender which amounts to `4,05,96,965/-. The present tender
was itself issued on 02-03-2019. The State relies on certain audit
report. The audit report is not even made available to the petitioner
till date, except in the interlocutory application. The audit report
insofar as the dispute is concerned is as follows:
"Pending Bills details for Loksabha Elections
Sl.No. Description Amount Considerable Remarks
(In. Rs.) Value(Yes/No)
1 For SVEEP 7,00,354 YES NIL
2 For FOOD 4,59,00,000 NO Cannot be
Considered
3 Control Room 1,50,202 YES NIL
4 Web Casting 14,27,800 YES NIL
5 Counting Material 5,00,000 YES Cost is
High. Can
be
negotiated
6 Polling Material 40,50,987 YES NIL
7 Video 90,00,000 YES NIL
8 Rent 10,52,500 YES NIL
9 Shamiyana for 4,25,00,000 YES Cost is very
Mustering De- High. Can
Mustering & be
Check Post negotiated
10 Strong Room 1,25,00,000 YES NIL
Preparation in
Counting Hall
11 Strong Room 48,10,000 YES NIL
Preparation in 7
LACs
12 BBMP-2019 MP & 1,75,32,551 NO It needs to
NVD be
confirmed
by all the
ADEOs of
BBMP and
cost can be
cut in their
demand.
13 Transport 8,87,092 YES NIL
14 Other material 41,991 NO Cannot be
considered.
15 Fuel 9,04,566 YES NIL
16 Printing & Others 46,35,747 YES NIL
17 Check Post 41 1,33,70,000 YES NIL
Nos-CCTV
18 TV, Computer, 56,91,000 NO Cannot be
Laptop considered.
Capital
costs
19 Tahsildar Proposal 1,40,00,000 YES NIL
20 Xerox Machine 48,380 NO Cannot be
Repair considered.
Capital
costs
Total 17,97,03,170 9,71,19,248
Under the heading pending bills at Sl.No.2 is the amount claimed
for food which amounts to `4.59 crores for all the seven
constituencies for over two months. The remarks is 'cannot be
considered'. The reason for not considering is not even noticed in
the audit report. The report does not inspire semblance of
confidence of this Court. The ninth item is `4.25 crores. What is
indicated in the report is, 'cost is very high and can be negotiated'.
Likewise, there were several items which are not to be considered
in the audit objections. Based upon the said audit objections, the
Deputy Commissioner communicates to the Chief Electoral Officer.
In the said communication what is observed insofar as one of the
items is concerned i.e., food is as follows:
"-- ---- -----
5 Food is given 3 times- ªÉÄîÌAqÀ DPÉëÃ¥ÀuÉUÉ ªÀåPÀÛ¥Àr¹gÀĪÀ "Hl"zÀ 7
Breakfast, Lunch, Dinner at «zsÁ£À¸À¨Ás PÉëÃvÀæUÀ¼À 2997 ªÀÄvÀUm
À ÖÉUÀ½UÉ
Rs.350/-per head every day ¸ÀA§A¢ü¹zÀAvÉ gÀÆ.4,59,00,000/- UÀ½UÉ F
for DEO office and Taluk PɼÀPÀAqÀ ¸ÀªÀÄeÁ¬Ä¶AiÀÄ£ÀÄß ¸À°è¹zÉ.
office staff from the day of ¢£ÁAPÀ:12-03-2019 jAzÀ 16-04-2019 gÀªÀgÉUÉ
announcement of elections (35 ¢ªÀ¸ÀUÀ¼ÀÄ) HlzÀ ªÉÆvÀÛ
till polling day. The rates gÀÆ.4,59,00,000/- UÀ¼ÁVzÀÄÝ, DPÉëÃ¥ÀuÉ
are exorbitant and does not ªÀåPÀÛ¥Àr¹gÀÄwÛÃj. DzÀgÉ, ZÀÄ£ÁªÀuÉAiÀÄ vÀÄvÀÄð
qualify according to ECI PÁAiÀÄðzÀ°è PÀbÉÃjAiÀÄ ¹§âA¢/ªÁºÀ£À
instructions. Exact no of ZÁ®PÀgÀÄ/UÀÆæ¥ï 'r' £ËPÀgÀgÀÄ ºÁUÀÆ ªÀĸÀÖjAUï,
people, who have been r-ªÀĸÀÖjAUï PÁAiÀÄðPÉÌ C¢üPÁj/¹§âA¢UÀ¼ÄÀ
provided food and the no. of PÁAiÀÄ𠤪Àð»¹zÀÄÝ, »A¢£À f¯Áè¢üPÁjUÀ¼À
days are not available. DzÉñÀzÀAvÉ HlzÀ ªÀåªÀ¸ÉÜ ªÀiÁqÀ¯ÁVzÉ. MAzÀÄ
ªÉÃ¼É Hl/wAr ªÀåªÀ¸ÉÜ ªÀiÁqÀzÉà EzÀÝ°è
PÁ£ÀÆ£ÀÄ ¸ÀĪÀåªÀ¸ÉÜUÉ ¨sÀAUÀ GAmÁUÀĪÀ
¸ÀA§ªÀ¢AzÀ ¸ÀzÀj £ËPÀgÀgÀÄ Hl/wArUÉ ºÉÆÃV
«¼ÀA§¢AzÀ ¤UÀ¢vÀ PÁAiÀÄð PÀÄApvÀªÁUÀĪÀ
zÀȶ֬ÄAzÀ ªÀiÁ£À«ÃAiÀÄvÉ DzsÁgÀzÀ ªÉÄÃgÉUÉ ¸ÀzÀj
Hl/wAr ªÀåªÀ¸ÉÜ ªÀiÁqÀ¯ÁVgÀÄvÀÛzÉ."
Food has been served; food is already digested and even though 5
years have gone by, the amount that was spent on food is yet to be
released in favour of the petitioner.
12. The petitioner, as a rejoinder to the objection to the
interlocutory application, has produced all the invoices before the
Court and again filed an affidavit. In the affidavit documents of the
State themselves clearly show that the amount is to be paid. The
Election Commission, pursuant to the order passed by this Court,
filed a Memo dated 26-03-2024, enclosing a document dated
25-08-2022 which reads as follows:
"ªÀÄÄRå ZÀÄ£ÁªÀuÁ¢üPÁjAiÀĪÀgÀ PÀbÉÃj, PÀ£ÁðlPÀ
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zÀÆgÀªÁt ¸ÀASÉå: 080-22270101
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07/06/2022
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18/06/2022
*****
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vÀªÀÄä «±Áé¹,
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(PÉ.JA.¥ÁæuÉñï)
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¹.D.¸ÀÄ.E (ZÀÄ£ÁªÀuÉUÀ¼ÀÄ)."
The Election Commission had clearly indicated that the issue should
be sorted out within its head. After the interim order supra was
passed by this Court, the learned counsel for the Election
Commission submits that the Commission had directed release of
the amount early and even now after the interim order was passed,
the State is sticking to its stand that 5 years ago head count is not
proper and there is doubt about the food that was supplied and the
rates are exorbitant. The State could not have kept quiet for 5
years in honouring the bills for payment in terms of the work order
issued to the petitioner. The irony is, the petitioner is again issued
the work order for the present Parliamentary Election of 2024 for
the same work with prices a little higher.
13. The learned senior counsel for the petitioner also takes
this Court through the notices issued by the Canara Bank, where
the petitioner had availed loan to execute the work in the year
2019, to demonstrate that due to the folly of the State the
petitioner is bearing the brunt of SARFAESI proceedings as well.
The issue now would be whether this Court would enter into the
issue of directing payment to be made to the petitioner or the
petitioner has to be relegated to fight a battle before the Civil
Court. The specious submission of the learned Additional Advocate
General is that these are disputed questions of fact. In the
considered view of this Court there is no disputed question of fact,
as the invoices and the amounts claimed are clear. The Election
Commission has directed payment. The Deputy Commissioner/1st
respondent pursuant to the proceeding had signed every document
in terms of the proceedings dated 13-12-2019 and cannot now go
back in time and contend that the petitioner has not spent the said
amount at all. In certain circumstances such factors can bear
consideration in a petition under Article 226 of the Constitution of
India.
14. The Apex Court, in the case of ABL INTERNATIONAL
LIMITED v. EXPORT CREDIT GUARANTEE CORPORATION OF
INDIA LIMITED1, has held as follows:
(2004) 3 SCC 553
".... .... ....
23. It is clear from the above observations of this Court,
once the State or an instrumentality of the State is a party of
the contract, it has an obligation in law to act fairly, justly and
reasonably which is the requirement of Article 14 of the
Constitution of India. Therefore, if by the impugned repudiation
of the claim of the appellants the first respondent as an
instrumentality of the State has acted in contravention of the
abovesaid requirement of Article 14, then we have no hesitation
in holding that a writ court can issue suitable directions to set
right the arbitrary actions of the first respondent. In this
context, we may note that though the first respondent is a
company registered under the Companies Act, it is wholly
owned by the Government of India. The total subscribed share
capital of this Company is 2,50,000 shares out of which
2,49,998 shares are held by the President of India while one
share each is held by the Joint Secretary, Ministry of Commerce
and Industry and Officer on Special Duty, Ministry of Commerce
and Industry respectively. The objects enumerated in the
memorandum of association of the first respondent at para 10
read:
"To undertake such functions as may be entrusted to
it by the Government from time to time, including grant of
credits and guarantees in foreign currency for the purpose
of facilitating the import of raw materials and semi-finished
goods for manufacture or processing goods for export."
Para 11 of the said object reads thus:
"To act as agent of the Government, or with the
sanction of the Government on its own account, to give the
guarantees, undertake such responsibilities and discharge
such functions as are considered by the Government as
necessary in national interest."
24. It is clear from the above two objects of the Company
that apart from the fact that the Company is wholly a
Government-owned company, it discharges the functions of the
Government and acts as an agent of the Government even
when it gives guarantees and it has a responsibility to discharge
such functions in the national interest. In this background it will
be futile to contend that the actions of the first respondent
impugned in the writ petition do not have a touch of public
function or discharge of a public duty. Therefore, this argument
of the first respondent must also fail.
25. The learned counsel for the respondent then
contended that though the principal prayer in the writ petition is
for quashing the letters of repudiation by the first respondent, in
fact the writ petition is one for a "money claim" which cannot be
granted in a writ petition under Article 226 of the Constitution of
India. In our opinion, this argument of the learned counsel also
cannot be accepted in its absolute terms. This Court in the case
of U.P. Pollution Control Board v. Kanoria Industrial Ltd. [(2001)
2 SCC 549] while dealing with the question of refund of money
in a writ petition after discussing the earlier case-law on this
subject held: (SCC pp. 556-58, paras 12 & 16-17)
"12. In the para extracted above, in a similar
situation as arising in the present cases relating to the very
question of refund, while answering the said question
affirmatively, this Court pointed out that the courts have
made distinction between those cases where a claimant
approached a High Court seeking relief of obtaining refund
only and those where refund was sought as a consequential
relief after striking down of the order of assessment etc. In
these cases also the claims made for refund in the writ
petitions were consequent upon declaration of law made by
this Court. Hence, the High Court committed no error in
entertaining the writ petitions.
***
16. In support of the submission that a writ petition
seeking mandamus for mere refund of money was not
maintainable, the decision in Suganmal v. State of
M.P. [AIR 1965 SC 1740] was cited. In AIR para 6 of the
said judgment, it is stated that
'we are of the opinion that though the High Courts
have power to pass any appropriate order in the exercise of
the powers conferred under Article 226 of the Constitution,
such a petition solely praying for the issue of a writ of
mandamus directing the State to refund the money is not
ordinarily maintainable for the simple reason that a claim
for such a refund can always be made in a suit against the
authority which had illegally collected the money as a tax'.
17. Again in AIR para 9, the Court held:
'We, therefore, hold that normally petitions solely
praying for the refund of money against the State by a writ
of mandamus are not to be entertained. The aggrieved
party has the right of going to the civil court for claiming
the amount and it is open to the State to raise all possible
defences to the claim, defences which cannot, in most
cases, be appropriately raised and considered in the
exercise of writ jurisdiction.'
This judgment cannot be read as laying down the law
that no writ petition at all can be entertained where claim is
made for only refund of money consequent upon declaration
of law that levy and collection of tax/cess is unconstitutional
or without the authority of law. It is one thing to say that
the High Court has no power under Article 226 of the
Constitution to issue a writ of mandamus for making refund
of the money illegally collected. It is yet another thing to
say that such power can be exercised sparingly depending
on facts and circumstances of each case. For instance, in
the cases on hand where facts are not in dispute, collection
of money as cess was itself without the authority of law; no
case of undue enrichment was made out and the amount of
cess was paid under protest; the writ petitions were filed
within a reasonable time from the date of the declaration
that the law under which tax/cess was collected was
unconstitutional. There is no good reason to deny a relief of
refund to the citizens in such cases on the principles of
public interest and equity in the light of the cases cited
above. However, it must not be understood that in all cases
where collection of cess, levy or tax is held to be
unconstitutional or invalid, the refund should necessarily
follow. We wish to add that even in cases where collection
of cess, levy or tax is held to be unconstitutional or invalid,
refund is not an automatic consequence but may be refused
on several grounds depending on facts and circumstances of
a given case."
26. Therefore, this objection must also fail because
in a given case it is open to the writ court to give such
monetary relief also.
27. From the above discussion of ours, the
following legal principles emerge as to the
maintainability of a writ petition:
(a) In an appropriate case, a writ petition as
against a State or an instrumentality of a State
arising out of a contractual obligation is
maintainable.
(b) Merely because some disputed questions of fact
arise for consideration, same cannot be a
ground to refuse to entertain a writ petition in
all cases as a matter of rule.
(c) A writ petition involving a consequential relief
of monetary claim is also maintainable.
28. However, while entertaining an objection as to
the maintainability of a writ petition under Article 226 of
the Constitution of India, the court should bear in mind
the fact that the power to issue prerogative writs under
Article 226 of the Constitution is plenary in nature and is
not limited by any other provisions of the Constitution.
The High Court having regard to the facts of the case, has
a discretion to entertain or not to entertain a writ
petition. The Court has imposed upon itself certain
restrictions in the exercise of this power. (See Whirlpool
Corpn. v. Registrar of Trade Marks [(1998) 8 SCC 1] .)
And this plenary right of the High Court to issue a
prerogative writ will not normally be exercised by the
Court to the exclusion of other available remedies unless
such action of the State or its instrumentality is arbitrary
and unreasonable so as to violate the constitutional
mandate of Article 14 or for other valid and legitimate
reasons, for which the Court thinks it necessary to
exercise the said jurisdiction."
(Emphasis supplied)
The Apex Court clearly holds that if the contracting party is a State,
writ petition for a monetary claim is also maintainable and
entertainable. It is undoubtedly a monetary claim in the case at
hand and the contracting party is the State itself. Therefore, there
can be no gainsaying that the writ petition is not entertainable by
this Court for a monetary claim. The said judgment is further
followed by the Apex court in the case of GAS AUTHORITY OF
INDIA LIMITED v. INDIAN PETROCHEMICALS CORPORATION
LIMITED - (2023) 3 SCC 629.
15. In the light of the judgments rendered by the Apex Court
supra and the unequivocal facts obtaining in the case at hand, the
State cannot now wash off its hands and leave the petitioner in
lurch. The State cannot treat the amount spent by the petitioner as
a 5 years plan, as 2019 Parliamentary election is long over where
the petitioner had spent the amount and 2024 Parliamentary
elections are nearing conclusion. Therefore, the action of the State
cannot but be held to be arbitrary and such arbitrariness will have
to lead to a direction for release of the payment as demanded by
the petitioner.
16. For the aforesaid reasons, the following:
ORDER
(i) Writ Petition is allowed.
(ii) A mandamus issues to the 1st respondent/Deputy
Commissioner to release an amount of `10,81,47,606/-
along with interest at the Bank rates obtaining from
time to time from 2019 till the date of its payment.
(iii) The aforesaid payment shall be made within four weeks
from the date of receipt of a copy of this order, failing
which, the petitioner would become entitled to interest
at the commercial rate charged by the Bank from time
to time.
Consequently, Pending applications, if any, also stand
disposed.
Sd/-
JUDGE
Bkp/CT:MJ
