Karnataka High Court
M/S Sri Srinivasa Infra Projects vs The Union Of India on 22 March, 2024
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
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NC: 2024:KHC-D:5671
WP No. 101645 of 2024
C/W WP No. 101602 of 2024
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 22ND DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE RAVI V.HOSMANI
WRIT PETITION NO. 101645 OF 2024 (GM-RES)
C/W
WRIT PETITION NO. 101602 OF 2024
IN WP.NO.101645/2024
BETWEEN:
M/S SRI SRINIVASA INFRA PROJECTS,
PRIVATE LTD-BALLARI, SHIVA SHANKAR NILYAM,
OPP. SHAKTHI NURSHING HOME, TALLUR ROAD,
BALLARI-583103,
REPRESENTED BY ITS AUTHORISED SIGNATORY,
Y.V.S. RAMAKRISHNA.
...PETITIONER
(BY SRI ARAVIND D. KULKARNI, ADVOCATE)
AND:
1. THE UNION OF INDIA,
REP. BY ITS GENERAL MANAGER,
SOUTH WESTERN RAILWAY, CLUB ROAD,
KESHWAPUR, HUBLI-580023.
CHANDRASHEKAR
LAXMAN
KATTIMANI
2. THE CHIEF ENGINEER,
Digitally signed by
CHANDRASHEKAR
CONSTRUCTION, SOUTH WESTERN RAILWAY,
LAXMAN KATTIMANI
Location: HIGH COURT
OF KARNATAKA
NO.18 MILLERS ROAD, CANTONMENT,
DHARWAD BENCH
Date: 2024.04.04
11:23:41 +0530 BANGALORE-560046.
3. THE DEPUTY CHIEF ENGINEER,
CONSTRUCTION, SOUTH WESTERN RAILWAY,
KESHWARPUR, HUBLI-580023,
REP. BY VINAYAK PADALKAR,
WORKING AS DEPUTY CHIEF ENGINEER,
CONSTRUCTION-I, SOUTH WESTERN RAILWAY,
KESHWAPUR, HUBLI.
...RESPONDENTS
(BY SRI M.C. HUKKERI, ADV. FOR R1 TO R3)
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NC: 2024:KHC-D:5671
WP No. 101645 of 2024
C/W WP No. 101602 of 2024
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF
CERTIORARI OR ANY OTHER WRIT OR DIRECTION QUASH THE
IMPUGNED NOTICE OF TERMINATION BEARING
NO.H/CN/W.148/HIGA/67/1215, DATED 10/01/2024 (ANNEXURE-Y),
PASSED BY THE RESPONDENT NO.3, BEING CONTRARY TO THE
CONDITIONS OF THE CONTRACT; ISSUE A WRIT OF MANDAMUS
DIRECTING THE RESPONDENTS TO MAKE PAYMENTS FOR THE
PENDING BILLS DUE TO THE PETITIONER AND FURTHER HANDOVER
HIM THE CLEARED SITE IN SO FOR AS THE IMBRAHIMPUR HALT
STATION IS CONCERNED FOR PERFORMANCE AS PER THE
CONTRACT AND ALLOW HIM TO COMPLETE THE BALANCE WORK AS
PER THE CONTRACT, IN THE INTEREST OF JUSTICE; ISSUE A WRIT
OF MANDAMUS DIRECTING THE RESPONDENTS TO APPROVE AND
ISSUE GAD's FOR THE NIMBAL MAIN STATION IS CONCERNED SO
THAT PETITIONERS CAN BEGIN WITH THE WORK AND COMPLETE AS
EARLY AS POSSIBLE, IN THE INTEREST OF JUSTICE.
IN WP. NO. 101602/2024
BETWEEN:
M/S SRI SRINIVASA INFRA PROJECTS,
PRIVATE LTD-BALLARI SHIVA SHANKAR NILYAM,
OPP. SHAKTHI NURSHING HOME, TALLUR ROAD,
BALLARI-583103,
REPRESENTED BY ITS AUTHORISED SIGNATORY,
Y.V.S. RAMAKRISHNA.
...PETITIONER
(BY SRI ARAVIND D. KULKARNI, ADVOCATE)
AND:
1. THE UNION OF INDIA,
REP. BY ITS GENERAL MANAGER,
SOUTH WESTERN RAILWAY, CLUB ROAD,
KESHWAPUR, HUBLI-580023.
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NC: 2024:KHC-D:5671
WP No. 101645 of 2024
C/W WP No. 101602 of 2024
2. THE CHIEF ENGINEER,
CONSTRUCTION,
SOUTH WESTERN RAILWAY,
NO.18 MILLERS ROAD, CANTONMENT,
BANGALORE-560046.
3. THE DEPUTY CHIEF ENGINEER,
CONSTRUCTION,
SOUTH WESTERN RAILWAY,
KESHWARPUR, HUBLI-580023,
REP. BY VINAYAK PADALKAR,
WORKING AS DEPUTY CHIEF ENGINEER,
CONSTRUCTION-I,
SOUTH WESTERN RAILWAY,
KESHWAPUR, HUBLI.
...RESPONDENTS
(BY SRI M.C. HUKKERI, ADV. FOR R1 TO R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF
CERTIORARI OR ANY OTHER WRIT OR DIRECTION QUASH THE
IMPUGNED NOTICE OF TERMINATION BEARING
NO.H/CN/W.148/HIGA/66/12/6, DATED 10/01/2024 (ANNEXURE-
ZB), PASSED BY THE RESPONDENT NO.3, BEING CONTRARY TO THE
CONDITIONS OF THE CONTRACT; ISSUE A WRIT OF MANDAMUS
DIRECTING THE RESPONDENTS TO MAKE PAYMENTS FOR THE
PENDING BILLS DUE TO THE PETITIONER AND FURTHER HANDOVER
HIM THE CLEARED SITE IN SO FOR AS THE HONAGANAHALLI HALT
STATION IS CONCERNED FOR PERFORMANCE AS PER THE
CONTRACT AND ALLOW HIM TO COMPLETE THE BALANCE WORK AS
PER THE CONTRACT, IN THE INTEREST OF JUSTICE.
THESE PETITIONS, COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
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NC: 2024:KHC-D:5671
WP No. 101645 of 2024
C/W WP No. 101602 of 2024
ORDER
Above writ petitions are filed seeking reliefs as follows:
i) In W.P.no.101645/2024:
i. Issue a Writ of certiorari or any other writ or direction quash the impugned notice of termination bearing no.H/CN/W.148/HIGA/67/ 1215, dated 10/01/2024 (Annexure-Y), passed by the Respondent no.3, being contrary to the conditions of the Contract.
ii. Issue a writ of mandamus directing the respondents to make payments for the pending bills due to the petitioner and further handover him the cleared site in so for as the Imbrahimpur Halt Station is concerned for performance as per the contract and allow him to complete the balance work as per the contract, in the interest of justice.
iii. Issue a writ of mandamus directing the respondents to approve and issue GAD's for the Nimbal Main Station is concerned so that petitioners can begin with the work and complete as early as possible, in the interest of justice.ii) In W.P.no.101602/2024
i. Issue a Writ of certiorari or any other writ or direction quashes the impugned notice of termination bearing no.H/CN/W.148/HIGA/ 66/12/6, dated 10/01/2024 (Annexure-ZB), passed by the respondent no.3, being contrary to the conditions of the Contract.
ii. Issue a writ of mandamus directing the respondents to make payments for the pending bills due to the petitioner and further handover him the cleared site in so for as the Honaganahalli Halt Station is concerned for performance as per the contract and allow him -5- NC: 2024:KHC-D:5671 WP No. 101645 of 2024 C/W WP No. 101602 of 2024 to complete the balance work as per the contract, in the interest of justice.
2. Sri Aravind D.Kulkarni, learned counsel for petitioner submitted that respondent no.3 had invited tender for Gadag - Hotgi doubling project (Tender no.HIGA-66) for construction of Foot Over Bridge (FOBs) with ramp at Basavana Bagewadi, Kalgurki, Mulvad, Honaganahalli and Jumnal Stations of which Basavana Bagewadi, Mulvad and Jumnal were main stations while Honaganahalli and Kalgurki stations were Halt Stations. It was submitted as petitioner was eligible and qualified, he submitted bid at competitive price of Rs.7,55,65,571/-, which was accepted and letter of acceptance was also issued on 09.03.2020, with agreement executed on 25.03.2021.
3. It was submitted, as per tender conditions, time for completion of work was nine months from date of approval of GADs. It was however submitted that approval of GADs was received 18 months after submission and thereafter due to monsoon season and non-receipt of Quality Assurance Plan (QAPs), petitioner could not begin tender -6- NC: 2024:KHC-D:5671 WP No. 101645 of 2024 C/W WP No. 101602 of 2024 work immediately. It was submitted on 28.06.2021, petitioner sought for finalization of third party inspection agency to enable petitioner to begin work. On 08.02.2022, respondent no.3 addressed letter calling for submission of bar chart with details for completion and commissioning of FOBs. On 04.03.2022, a reminder was issued. On 30.09.2022, petitioner was issued with letter wherein respondent no.3 called upon him to complete FOBs work by 02.12.2022.
4. In response, petitioner apprised respondent about reasons for delay namely belated approval of GADs and also reporting progress of work at Basavana Bagewadi and Mulvad Stations which was at 90% and 50% at Jumnal Station and assuring that FOBs at these stations would be completed by 30.12.2022. Insofar as FOBs at Halt Stations, it was informed that approved GADs were not received and department was also considering requirement of FOBs at Halt Stations. Effect of Covid-19 Pandemic on progress, it was also highlighted. However on 30.11.2022, even before completion of period mentioned in earlier correspondence, -7- NC: 2024:KHC-D:5671 WP No. 101645 of 2024 C/W WP No. 101602 of 2024 respondent no.3 issued notice calling upon petitioner to make good deficiency towards completion of work within seven days against risk of cancellation of contract. On 13.02.2023, once again similar notice of seven days was issued.
5. In response, petitioner apprised that FOBs work at Basavana Bagewadi and Mulvad Stations were completed and work at Jumnal Station was nearing completion. It was sought to be explained that delay was not only due to non- availability of skilled labour due to Covid-19 Pandemic, but also due to unseasonal rain and non-availability of some major angular materials. It was submitted that on 29.05.2023, referring to extension of currency of agreement under Clause 17A (ii) of GCC up to 30.07.2023 stating that work at Basavana Bagewadi and Mulvad Station was completed and handed over while at Jumnal, it was under
progress and need for construction of FOBs at Halt Stations in view of extremely low foot fall and also about necessity of joint inspection with open line railway officials for identifying -8- NC: 2024:KHC-D:5671 WP No. 101645 of 2024 C/W WP No. 101602 of 2024 propose location for construction of FOBs as adequate space was not readily available.
6. In subsequent correspondence dated 04.07.2023, petitioner submitted GADs for FOBs at Kalgurki and Honaganahalli stations as earlier verbal instruction about no necessity of FOBs at Halt Stations was modified. It was submitted that on 11.12.2023, when petitioner had shown sufficient progress even while explaining reasons for delay was not on his account, respondent no.3 issued one more seven days notice. Though petitioner had responded to said notice, without consideration, respondent no.3 issued notice dated 01.01.2024 to complete work within 48 hours failing which action for rescinding of contract would be taken. It was submitted that petitioner once again apprised respondent of reasons for delay and seeking extension.
However, respondent no.3 proceeded to issue notice dated 10.01.2024 produced as Annexure-ZB, canceling contract, barring petitioner from participation in tender for executing balance works, forfeiting security deposit and invoking -9- NC: 2024:KHC-D:5671 WP No. 101645 of 2024 C/W WP No. 101602 of 2024 performance guarantee. Aggrieved by said action, petitioner had approached this Court.
7. It was submitted, for various reasons which were beyond control of petitioner and also on ground that they were not attributable to petitioner, there was delay in tender work. It was submitted that petitioner had already completed and handed over FOBs at main stations i.e. Basavana Bagewadi, Mulvad and Jumnal Stations, while work at Kalgurki had commenced. It was submitted that at Honaganahalli, respondents had not yet conducted joint inspection which was required to sort out available space and other specific issues at spot. Such being case, respondent no.3 was not justified in issuing show-cause notice of only 48 hours prior to passing order of cancellation. It was submitted that under similar circumstances wherein respondents had issued notice of termination, this Court in W.P.no.104435/2023 disposed of on 04.09.2023 and W.P.no.103866/2023 disposed of on 13.07.2023 had set aside notice of termination and granted extension of time for
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NC: 2024:KHC-D:5671 WP No. 101645 of 2024 C/W WP No. 101602 of 2024 completion of work. It was submitted that same would apply to facts of present case and sought for allowing writ petition.
8. Insofar as WP no.101645/2024, it was submitted that subject matter of writ petition was similar tender work, but for construction of FOBs at Ibrahimpur, Vijayapura, Minchanal, Kyatanakeri and Nimbal stations. It was submitted that in view of existence of an earlier constructed FOB at Vijayapura station, said work was deemed withdrawn. Insofar as FOBs at other stations, it was submitted that FOB at Minchanal station was completed and handed over, while work at Kyatanakeri station was in progress. It was submitted that in case of Ibrahimpur station, it would be completed if necessary assistance as sought in petitioner's letter dated 04.01.2024 as per Annexure-ZB were provided. Learned counsel undertook to submit GAD to respondent by 20.03.2024 with further undertaking to complete tender work within three to four months.
9. On other hand, Sri M.C.Hukkeri, learned counsel for respondents sought to oppose writ petition. It was
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NC: 2024:KHC-D:5671 WP No. 101645 of 2024 C/W WP No. 101602 of 2024 submitted that since petitioner was L1 bidder, he was awarded tender work under letter dated 09.03.2020, to be completed within a period of nine months which would be on or before 08.12.2020. However, petitioner submitted GADs only on 10.07.2023 after lapse of nearly 2 ½ years and after expiry of currency of agreement. It was submitted that on 10.11.2023, respondent no.3 had written to petitioner to shed personal attention and show progress towards completion of work as per Annexure-R4. Thereafter, on 11.12.2023, petitioner was issued with seven days notice as per Annexure-R5. Since petitioner failed to show progress, respondent no.3 was constrained to issue 48 hours notice on 01.01.2024 as per Annexure-R6 and for failure to comply, notice of termination was issued on 10.01.2024 as per Annexure-R7.
10. It was submitted petitioner had sought extension of time to complete remaining work as per original agreement by submitting letter dated 30.10.2023 (Annexure-R8). It was submitted that taking note of fact that currency of agreement was extended six times, there was
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NC: 2024:KHC-D:5671 WP No. 101645 of 2024 C/W WP No. 101602 of 2024 further extension from 30.07.2023 to 31.03.2024 as per Annexure-R9. It was submitted that having availed extension six times already, there was no justification for petitioner to approach this Court. Overall progress shown by petitioner was only 41%. It was further submitted that petitioner herein was also petitioner in W.P.no.104435/2023 wherein extension was granted under Order dated 04.09.2023. However, in respect of said work also, progress shown was only 2.55% constraining respondent no.3 to issue notices on 10.11.2023 and 14.02.2024 produced as Annexures-R10 and 11 respectively. It was submitted for above stated reasons, petitioner did not deserve indulgence and sought for dismissal of writ petition.
11. Heard learned counsel and perused writ petition record.
12. From above, it is seen that petitioner is challenging order of termination dated 10.01.2024 at Annexure-ZB issued by respondent no.3 in W.P.no.101602/2024, while it
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NC: 2024:KHC-D:5671 WP No. 101645 of 2024 C/W WP No. 101602 of 2024 is Annexure-Y dated 10.01.2024 issued by respondent no.3 in W.P.no.101645/2024.
13. But in W.P.no.101602/2024, as per Annexure-R9, issued by respondent no.3 there is extended currency of agreement upto 31.03.2024. In view of same, impugned order at Annexure-ZB would be deemed withdrawn/discharged.
14. Even in W.P.no.101645/2024, it has been unequivocally pleaded in paragraph of statement of objections filed by respondents that there is similar extension of currency of agreement upto 31.03.2024. In view of same, impugned order at Annexure-Y would be deemed withdrawn/discharged.
15. It is also seen that in similar circumstances, this Court in WP no.104435/2023 disposed of on 04.09.2023 and 103866/2023 disposed of on 13.07.2023 had granted conditional extension.
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NC: 2024:KHC-D:5671 WP No. 101645 of 2024 C/W WP No. 101602 of 2024
16. On similar terms petitioner was seeking for extension of time for completion of works. It was stated that in present tender work, construction of FOB at Vijayapura station was canceled due to existence of FOB and that petitioner had completed and handed over FOBs at Basavana Bagewadi, Mulvad and Jumnal stations. It is submitted that work at Kalgurki station was in progress and in respect of Honaganahalli, joint inspection was stated to be necessary.
17. On 15.03.2024, taking note of submissions of learned counsel for petitioner and respondent in light of decisions relied upon, petitioner was directed to file affidavit undertaking indicating time line for completion of works. It is seen that petitioner has complied with said direction and filed affidavit.
18. In compliance with said direction, petitioner filed affidavits on 20.03.2024. Insofar as WP no.101602/2024, it is stated that FOBs at Basavana Bagewadi, Mulvad and Jumnal stations were completed and handed over. FOB in Kalgurki station, work was in progress and would be
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NC: 2024:KHC-D:5671 WP No. 101645 of 2024 C/W WP No. 101602 of 2024 completed within three months, while, in respect of Honaganahalli FOB, it is stated that permission from adjacent land owners was required and after obtaining same and marking, petitioner would complete work within four months of approval of GAD.
19. Insofar as WP no.101645/2024, it was stated that FOBs at Minchanal station was completed and handed over while FOBs at Vijayapura was no longer required in view of existence of alternative FOB. It is stated that work was in progress at Kyatanakeri station and would be completed within three months and likewise in case of Ibrahimpur station FOB work would be commenced and completed within four months by taking necessary assistance from respondents. In respect of Nimbal station, it is stated that petitioner had submitted GAD and undertook to complete work within six months of approval to be given by respondents as said station had four line tracks with large gap between two tracks requiring construction of additional pier at centre, which would required to be constructed manually without usage of heavy machinery.
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NC: 2024:KHC-D:5671 WP No. 101645 of 2024 C/W WP No. 101602 of 2024
20. In view of above affidavit undertaking in light of above mentioned facts and circumstances, it is deemed appropriate to grant extension of time for completion of work. Hence, following:-
ORDER i. Writ petitions are disposed of.
ii. In W.P.no.101602/2024, with issuance of extension as per Annexure-R9, impugned order dated 10.01.2024 at Annexure-ZB, passed by respondent no.3 is held discharged.
iii. And likewise in W.P.no.101645/2024, in view of assertion of respondents in statement of objections at para-4, impugned order dated 10.01.2024 at Annexure-Y issued by respondent no.3 is held to have been discharged.
iv. It is held that tender agreements in both cases are current. Consequently, subsequent action by respondents in issuing fresh tender for said works are held illegal.
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NC: 2024:KHC-D:5671 WP No. 101645 of 2024 C/W WP No. 101602 of 2024 v. In respect Honaganahalli FOB, petitioner is granted extension of four months for completion of FOB work.
vi. In WP no.101645/20024, it is held that FOB in Minchanal station is completed, and in view of existence of alternate FOB at Vijayapur station, said work is no longer required to be executed by petitioner.
vii. FOB work in Kyatanakeri station being under progress shall be completed within a period of three months.
viii. Likewise, in case of Imbrahimpur station, FOB work would be commenced and completed within four months.
ix. Insofar as Nimbal station, petitioner has already submitted GADs and shall complete FOB work within six months of receipt of approval of GADs.
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NC: 2024:KHC-D:5671 WP No. 101645 of 2024 C/W WP No. 101602 of 2024 x. Likewise in WP no.101602/2024, it is held FOBs at Basavanbagewadi, Mulvad and Jumnal stations are completed and handed over to respondents.
xi. In respect of Kalgurki station FOB work being in progress shall be completed within three months.
xii. In respect Honaganahalli FOB, it is held that after joint inspection marking is given, and petitioner shall complete work within six months.
xiii. It is clarified that in case, petitioner fails to complete works as per above schedule, respondents would be at liberty to take suitable action against petitioner as per tender conditions.
Sd/-
JUDGE CLK/Vmb List No.: 2 Sl No.: 1