Karnataka High Court
M/S. Drn Infrastructure vs The State Of Karnataka on 30 July, 2018
Bench: Chief Justice, R Devdas
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W.P.No.50157/2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JULY, 2018
PRESENT
HON'BLE MR.JUSTICE DINESH MAHESHWARI, CHIEF JUSTICE
AND
HON'BLE MR.JUSTICE R.DEVDAS
WRIT PETITION NO.50157/2017 (GM-MM-S)
BETWEEN:
M/S. DRN INFRASTRUCTURE
ENGINEERS AND CONTRACTORS
NAYAK'S HOUSE, DOOR NO.110
3RD FLOOR, DOLLARS COLONY
GOKUL ROAD, HUBBALLI-580030
REP BY ITS GPA HOLDER
MR. ARUN KUMAR NADGOUDA
... PETITIONER
(BY SRI R.G. KOLLE, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REP BY ITS CHIEF SECRETARY
VIDHAN SOUDHA, BENGALURU
BENGALURU-560001
2. THE ADDITIONAL CHIEF SECRETARY
DEPARTMENT OF PUBLIC WORKS,
PORTS & INLAND WATER TRANSPORTS
BENGALURU-560001
3. THE PRINCIPAL SECRETARY TO GOVERNMENT
DEPARTMENT OF COMMERCE & INDUSTRIES
VIKASA SOUDHA, BENGALURU-560001
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W.P.No.50157/2017
4. THE DIRECTOR & COMMISSIONER
DEPARTMENT OF MINES AND GEOLOGY
KHANIJA BHAVAN, RACE COURSE ROAD
BENGALURU-560001
5. THE SENIOR GEOLOGIST &
COMPETENT AUTHORITY
DEPARTMENT OF MINES AND GEOLOGY
BELGAUM-581110
6. THE CHIEF ENGINEER
KARNATAKA ROAD DEVELOPMENT
CORPORATION LTD.,
MILLER TANK BED AREA
TIMMAIAH ROAD CROSS
BENGALURU-560052
... RESPONDENTS
(BY SRI VIKRAM HUILGOL, HCGP)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
DIRECT THE OFFICIAL RESPONDENTS TO COLLECT AND
DEDUCT ROYALTY PURSUANT TO AN EARLIER
GOVERNMENT NOTIFICATION NO.CI 56 MMN 2006 DATED
23.06.2007 AT ANNEXURE-F TILL THE COMPETITION OF
WORK CONTRACT IN TERMS OF AGREEMENT DATED
22.02.2013 AND WORK ORDER DATED 02.03.2013 VIDE
ANNEXURES-A AND B RESPECTIVELY IN RESPECT OF MINOR
MINERALS LIKE MURRAM, GRAVEL, SAND, ORDINARY
BUILDING STONES EXTRACTED FROM PRIVATE PATTA
LANDS AND GOVERNMENT LANDS AS PER RULE 36,
SCHEDULE-II, WHICH IS BEING CREDITED TO THE ACCOUNT
OF RESPONDENT NO.5 SENIOR GEOLOGIST, IN TURN TO
THE ACCOUNT OF STATE TREASURY/EXCHEQUER AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, CHIEF JUSTICE MADE THE FOLLOWING:
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W.P.No.50157/2017
ORDER
Learned counsel for the parties are ad idem that the subject matter of this petition stands squarely covered by the decision of this Court in W.P.No.50163/2017, decided on 25.06.2018 wherein, after dealing with the submissions made on behalf of the petitioner on the same subject matter and with reference to the orders earlier passed, this Court, inter alia, observed and held as under:
"In an identical matter, between the very same parties, this Court, after noticing the availability of arbitration clause in the contract documents, declined to interfere in writ jurisdiction. It is pertinent to reproduce the observation of this Court in the order dated 09.04.2018 at Page 7 therein, while dismissing the very petitioners' W.P.No.50161/2017:-
"It remains rather indisputable that the matters involved in the decisions referred by the learned counsel for the petitioner arose out of the respective arbitral awards and not by way of writ petitions. When the contract in question contains arbitration agreement and the dispute pertains to the particular deductions in the running account bills; and the claim is of the refund 4 W.P.No.50157/2017 with interest, we are clearly of the view that all the relevant aspects need to be gone into in the appropriate forum and for that matter, by the Sole Arbitrator, as envisaged in the contract in question."
Learned counsel for the petitioner however submits that in the aforesaid order, certain important aspects relating to invokability of writ jurisdiction in contractual matters as discussed by the Hon'ble Supreme Court, were not brought to the notice of this Court and therefore, a departure from the same is warranted in this case.
The counsel relies upon the judgment of the Apex Court in the case of ABL International Ltd and another V/s Export Credit Guarantee Corporation of India Ltd and others reported in (2004) 3 SCC 553, para 27 whereof reads as under:-
"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.5 W.P.No.50157/2017
(c) A writ petition involving a consequential relief of monetary claim is also maintainable. "
While heavily relying upon the above paragraph, the learned counsel for the petitioner submits that levy and recovery of royalty at the rates in excess of what is prescribed by the Government Notification dated 23.06.2007, can be the subject matter of judicial review under Articles 226 & 227 of the Constitution of India, the arbitration clause in the contract document, notwithstanding. Therefore, he submits that, the petitioner need not be relegated to arbitration. We are not impressed by this submission inasmuch as apparently, disputed questions of fact arise in this case, which ordinarily are not adjudicated in writ jurisdiction. The parties have consciously incorporated the arbitration clause in their contract by way of Alternative Dispute Redressal Mechanism. No explanation is forthcoming as to why this alternative and efficacious remedy cannot be pursued.
In the above circumstances, the writ petition stands dismissed. However, liberty is reserved to the petitioner to take recourse to appropriate remedies, in accordance with law."
6 W.P.No.50157/2017The position aforesaid applies to the present case too.
Accordingly, this petition also stands disposed of.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE bkv