Karnataka High Court
Sharanabasappa S/O Karabasappa Savadi vs The Hubballi-Dharwad Municipal ... on 23 April, 2018
Author: Krishna S Dixit
Bench: Krishna S. Dixit
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 23RD DAY OF APRIL, 2018
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S. DIXIT
WRIT PETITION NOs.102461-102465 OF 2018 ( LB-RES )
& 102477-102480 OF 2018
C/W
WRIT PETITION NOS.102274-102287 OF 2018,
C/W
WRIT PETITION NOS.102468-102472 OF 2018
& 102529-102558 OF 2018.
IN WP NOS.102461-102465/2018
& 102477-102480/2018
BETWEEN
1 SHARANABASAPPA S/O. KARABASAPPA SAVADI,
AGE 42 YEARS, OCC: HDMC
SOLID WASTE MANAGEMENT CONTRACTOR,
WARD NO.5 & 14 OF DHARWAD,
R/O. ULAVI CHANNABASAVESHWAR NAGAR,
2ND STAGE, 1ST MAIN ROAD, DHARWAD,
TQ AND DIST. DHARWAD.
2 MANOHAR S. DHARWADKAR,
AGE 52 YEARS, OCC: HDMC
SOLID WASTE MANAGEMENT CONTRACTOR,
WARD NO.7 OF DHARWAD &
WARD NO.52 & 63 OF HUBLI,
R/O. PLOT NO.20, INDIMATI NILAYA,
SHANTAPURAM LAYOUT, NEAR J.K.SCHOOL,
HUBBALLI, TQ. HUBBALLI, DIST. DHARWAD.
3 NARASIMHALU C. SAGABAL,
AGE 48 YEARS, OCC: HDMC
2
SOLID WASTE MANAGEMENT CONTRACTOR,
WARD NO.1 & 19 OF DHARWAD,
R/O. HATTIKOLLA, JAMABAVANT NAGAR,
DHARWWAD, TQ AND DIST. DHARWAD.
4 KRISHNA S/O. OBLESH ARWED,
AGE 46 YEARS, OCC: HDMC
SOLID WASTE MANAGEMENT CONTRACTOR,
WARD NO.16 OF DHARWAD &
EMERGENCY LABOUR OF DHARWAD,
R/O. JAIBEEM NAGAR, MADARAMADDI,
DHARWAD, TQ AND DIST. DHARWAD.
5 VENKATESH OBLESH ARWED,
AGE 50 YEARS, OCC: HDMC
SOLID WASTE MANAGEMENT CONTRACTOR,
WARD NO.21 OF DHARWAD & UGD CLEANING
PACKAGE NO.1 AND
BULK WASTE PACKAGE NO.1 DHARWAD
R/O. JAIBEEM NAGAR, MADARAMADDI,
DHARWAD, TQ AND DIST. DHARWAD
... PETITIONERS
(By SRI. F.V.PATIL, ADV.)
AND
THE HUBBALLI-DHARWAD MUNICIPAL CORPORATION,
REPTD. BY ITS COMMISSIONER, HUBBALLI,
TQ. HUBBALLI, DIST. DHARAD.
... RESPONDENT
(SRI. M.B.NARAGUND, SENIOR COUNSEL FOR
SRI G.I.GACHCHINAMATH, ADVOCATE)
THESE WRIT PETITIONS ARE FILED PRAYING TO QUASH
THE IMPUGNED ORDER DATED 17.01.2017 BRG.NO.HDMC/74/05/-
512/16-17 PASSED BY THE RESPONDENT VIDE ANNEXURE-E AND
DECLARE THAT THE RESPONDENT CORPORATION DOES NOT HAVE
ANY JURISDICTION TO TERMINATE THE CONTRACT WORK OF
3
SOLID WASTE MANAGEMENT OF RESPONDENT CORPORATION
WITHOUT PRAYING THE SERVICE CHARGES AND WRONGLY
DEDUCTED 5% PROVIDENT FUND AND FULLY SETTLING THE
ACCOUNTS TO WHICH THE PETITIONERS ARE ENTITLED.
*****
IN WP NOS.102274-102287 OF 2018,
BETWEEN
1 BASAVARAJ SHIVASHANKARAPPA TERDAL,
AGE 42 YEARS, OCC: HDMC,
SOLID WASTE MANAGEMENT CONTRACTOR,
WARD NO.29 OF HUBBALLI,
R/O. MANGAL ONI, KARWAR ROAD,
HUBBALLI, TQ. HUBBALLI, DIST. DHARWAD.
2 RAMESH NAGAPPA KOLAGOND,
AGE 45 YEARS, OCC: HDMC,
SOLID WASTE MANAGEMENT CONTRACTOR,
WARD NO.42 OF HUBBALLI,
R/O. AMBEDKAR NAGAR, CHANPETH,
OLD HUBBALLI, TQ. HUBBALLI, DIST. DHARWAD.
3 VENKATESH NARAYAN GUNDLAPALLI,
AGE 30 YEARS, OCC: HDMC,
SOLID WASTE MANAGEMENT CONTRACTOR
WARD NO.43 OF HUBBALLI,
R/O. INDIRA NAGAR, P.B.ROAD,
HUBBALLI, TQ. HUBBALLI, DIST. DHARWAD.
4 BASAPPA MALLAPPA YAMANAL,
AGE 51 YEARS, HDMC
SOLID WASTE MANAGEMENT CONTRACTOR,
WARD NO.41 OF HUBBALLI,
R/O. AMBEDKAR NAGAR, CHANPETH,
OLD HUBBALLI, TQ. HUBBALLI, DIST. DHARWAD.
5 M.H.SHAIK,
AGE 45 YEARS, OCC: HDMC,
SOLIL WASTE MANAGEMENT CONTRACTOR,
4
WARD NO.12 OF DHARWAD,
R/O. MANAKILLA, MUTON MARKET, DHARWAD,
DIST. DHARWAD.
6 RAMACHANDRA S/O. RAMALAXMAN PODODDI,
AGE 41 YEARS, OCC: HDMC,
SOLID WASTE MANAGEMENT CONTRACTOR,
WARD NO.8 OF DHARWAD,
R/O. JAMBAVANT NAGAR, HATTIKOLLA,
DHARWAD, DIST. DHARWAD.
7 RAJU S/O. BUDDAPPA MADAR,
AGE 44 YEARS, OCC: HDMC
SOLID WASTE MANAGEMENT CONTRACTOR,
WARD NO.03 OF DHARWAD,
R/O. JAMBAVANT NAGAR, HATTIKOLLA,
DHARWAD, DIST. DHARWAD.
8 KUBERAPPA S/O. TIRUKAPPA HOSAMANI,
AGE 35 YEARS, OCC: HDMC,
SOLID WASTE MANAGEMENT CONTRACTOR,
WARD NO.10 OF DHARWAD,
R/O. MADARMADDI, MADAR ONI, DHARWAD,
DIST. DHARWAD.
9 KRISHNA S/O. OBLESH ARWED,
AGE 45 YEARS, OCC: HDMC,
SOLID WASTE MANAGEMENT CONTRACTOR,
WARD NO.15 OF DHARWAD,
R/O. JAIBHEEM NAGAR, MADARMADDI, DHARWAD,
DIST. DHARWAD.
10 SURESH S/O. KULLAYAPPA MADAR,
AGE 35 YEARS, OCC: HDMC,
SOLID WASTE MANAGEMENT CONTRACTOR,
WARD NO.11 (MARKET) DHARWAD,
R/O. JAMBAVANT NAGAR, HATTIKOLLA,
DHARWAD, DIST. DHARWAD.
11 K.S.MOTE,
AGE 47 YEARS, OCC: HDMC,
SOLID WASTE MANAGEMENT CONTRACTOR,
WARD NO.04 OF DHARWAD,
5
R/O. MRUGHARAJENDRA NAGAR, HEBBALLI AGASI,
DHARWAD, DIST. DHARWAD.
12 TANAJIRAO S/O. TOPAJIRAO PUNDE,
AGE 48 YEARS, OCC: HDMC,
SOLID WASTE MANAGEMENT CONTRACTOR,
WARD NO.06 OF DHARWAD,
R/O. MADHIHAL, DHARWAD, DIST. DHARWAD
13 OBLESH S/O. OBLESH ARWED,
AGE 39 YEARS, OCC: HDMC,
SOLID WASTE MANAGEMENT CONTRACTOR,
WARD NO.18 OF DHARWAD,
R/O. JAMBAVANT NAGAR, HATTIKOLLA,
DHARWAD, DIST. DHARWAD.
14 M.A.BYALAL,
AGE 48 YEARS, OCC: HDMC,
SOLID WASTE MANAGEMENT CONTRACTOR,
WARD NO.11 OF DHARWAD,
R/O. AZAD NAGAR, KAKARGALLI, LINE BAZAAR,
DHARWAD, DIST: DHARWAD.
... PETITIONERS
(By SRI. F.V.PATIL, ADV.)
AND
THE HUBBALLI-DHARWAD MUNICIPAL CORPORATION,
REPTD. BY ITS COMMISSIONER, HUBBALLI,
TQ. HUBBALLI, DIST. DHARAD.
... RESPONDENT
(SRI. M.B.NARAGUND, SENIOR COUNSEL FOR
SRI G.I.GACHCHINAMATH, ADVOCATE)
THESE WRIT PETITIONS ARE FILED PRAYING TO QUASH
THE IMPUGNED ORDER DATED 17.01.2017 BRG.NO.HDMC/74/05/-
512/16-17 PASSED BY THE RESPONDENT VIDE ANNEXURE-M AND
ISSUE WRIT IN THE NATURE OF MANDAMUS CONSIDERING THE
REPRESENTATIONS DATED 09.03.2017, 04.04.2017 AND
6
06.12.2017 AND TO SETTLE THE ACCOUNT IN TERMS OF THE
REPRESENTATIONS VIDE ANNEXURES-Q, Q1 AND Q2 AND ALSO
TO MAKE THE PAYMENT AS PER THE CALCULATIONS INDICATED
IN ANNEXURES-F, F1, F2 AND F3 IN TERMS OF THE RESOLUTION
VIDE ANNEXURE-L DATED 29.12.2011 AND P NO.HDMC:40:01:
MAAHITI HAKKU:2017-18 DATED 28.11.2017
********
IN WP NOS.102468-102472 OF 2018
& 102529-102558 OF 2018.
BETWEEN
1 A.T.CLEANING SERVICES
BY ITS PROPRIETOR
ALLABAKSH S/O. MOHAMMEDSAHEB KITTUR,
AGE 46 YEARS, OCC: CONTRACTOR - WARD NO.65,
R/O. H.NO.32, ALTAF COLONY,
MAVANUR ROAD, OLD HUBBALLI,
HUBBALLI - 580024.
2 NAGARAJ S/O. MALLAPPA TAGARAGUNTI,
AGE 53 YERS, OCC: CONTRACTOR - WRD NO.52,
R/O. H.NO.60, INDIRA NAGAR,
P.B.ROAD, BANKAPUR CHOWK,
HUBBALLI - 580024.
3 KODANDAPANI S/O. MUTHYALAPPA GUNTAPALLI,
AGE 51 YEARS, OCC: CONTRACTOR-WARD NO.61,
R/O. INDIRA NAGAR, P.B.ROAD,
BANKAPUR CHOWK,
HUBBALLI - 580024.
4 SIDDALINGAYYA S/O. NIJAGUNNAYYA HIREMATH,
AGE 48 YEARS, OCC: CONTRACTOR-WARD NO.55,
R/O. BHUSPET ROAD, MAHALDAR ONI,
NEAR LAXMI TEMPLE, HUBBALLI - 580024
5 PANDURANG S/O. GULDANAPPA TAGARAGUNTI,
AGE 58 YEARS, OCC: CONTRACTOR-WARD NO.20,
R/O. INDIRA NAGAR, P.B.ROAD,
BANKAPUR CHOWK, HUBBALLI - 580024.
7
6 SIDDAPPA S/O. KALAPPA DODDAMANI,
AGE 45 YEARS, OCC: CONTRACTOR-WARD NO.46,
R/O. DR. AMBEDKAR COLONY,
AYODHYA NAGAR, OLD HUBBALLI,
HUBBALLI - 580024
7 PRAMOD S/O. RAJSHEKHAR KULKARNI,
AGE 42 YEARS, OCC: CONTRACTOR-WARD NO.30 & 33,
R/O. H.NO.75, VIJAYNAGAR EXTENTION,
HUBBALLI - 580024.
8 VENKATESH S/O. HANUMANTAPPA BELADONI,
AGE 46 YEARS, OCC: CONTRACTOR-WARD NO.44,
R/O. DR. AMBEDKAR NAGAR,
DHANNAPET, OLD HUBBALLI,
HUBBALLI - 580024
9 OBLESH S/O. KULLAYAPP GURAGUNTI,
AGE 40 YEARS, OCC: CONTRACTOR-WARD NO.34,
R/O. DR. AMBEDKAR NAGAR,
DHANNAPET, OLD HUBBALI,
HUBBALLI - 580024.
10 VINAYAK NARASIMHA PERUR,
AGE 32 YEARS, OCC: CONTRACTOR-WARD NO.66,
R/O. INDIRA NAGAR,
P.B.ROAD, BANKAPUR CHOWK,
HUBBALLI - 580024.
11 VENKATESH S/O. BABU SAMBRANI,
AGE 47 YEARS, OCC: CONTRACTOR-WARD NO.59,
R/O. INDIRA NAGAR, P.B.ROAD,
BANKAPUR CHOWK, HUBBALLI - 580024
12 ANJU S/O. SHIVAPPA KADARAGUNTI,
AGE 46 YEARS, OCC: CONTRACTOR-WARD NO.38,
R/O. INDIRA NAGAR, P.B.ROAD,
BANKAPUR CHOWK,
HUBBALLI - 580024
13 RAJU S/O. SIDDAPPA GUNTAPALLI,
AGE 46 YEARS, OCC: CONTRACTOR-WARD NO.60
R/O. INDIRA NAGAR, P.B.ROAD,
BANKAPUR CHOWK,
HUBBALLI - 580024.
8
14 VASUDEV S/O. MUTYALAPPA GUNTAPALLI,
AGE 44 YEARS, OCC: CONTRACTOR-WARD NO.37,
R/O. INDIRA NAGAR, P.B.ROAD,
BANKAPUR CHOWK,
HUBBALLI - 580024
15 GURUNATH S/O. OBALAPPA WADDAPALLI,
AGE 47 YEARS, OCC: CONTRACTOR-WARD NO.53,
R/O. INDIRA NAGAR, P.B.ROAD,
BANKAPUR CHOWK, HUBBALLI - 580024.
16 SIDDARTH CLEANING SECURITY AGENCIES
BY ITS PROPRIETOR,
HALUNDAYYA S/O. SIDDAPPA RAMAYYANNAVAR,
AGE 46 YEARS, OCC: CONTRACTOR WARD NO.57,
R/O. KARAKI BASAVESHWAR NAGAR,
HUBBALLI.
17 MANJUNATH CLEANING & SECURITY AGENCY,
BY ITS PROPREITOR,
SHARANAPPA S/O. BASAPPA SHIRWAR
AGE 44 YEARS, OCC: CONTRACTOR-WARD NO.67
R/O. INDIRA NAGAR, P.B.ROAD,
BANKAPUR CHOWK, HUBBALLI - 580024
18 VENKATESH S/O. VITTAL SAMBRANI,
REPTD. BY UDAY S/O. VENKATESH SAMBRANI,
AGE 22 YEARS, OCC: CONTRACTOR-WARD NO.26,
R/O. INDIRA NAGAR, P.B.ROAD,.
BANKAPUR CHOWK, HUBBALLI - 580024.
19 VISHWANATH S/O. ANAND VADDAPALLI,
AGE 29 YEARS, OCC: CONTRACTOR WARD NO.64,
R/O. INDIRA NAGAR, P.B.ROAD,
HUBBALLI - 580024.
20 SAMARTH ENTERPRISES,
BY ITS PROPRIETOR
VENKATESH S/O. NAGAPPA KUDER,
AGE 47 YEARS, OCC: CONTRACTOR WARD NO.27,
R/O. INDIRA NAGAR, P.B.ROAD,
BANKAPUR CHOWK, HUBBALLI-580024
9
21 MALATESH S/O. SHIVAPUTRAPPA KARAJAGI,
AGE 42 YEARS, OCC: CONTRACTOR-WARD NO.36,
R/O. SIDDALINGESHWAR COLONY,
VIKAS NAGAR, HUBBALLI-580024
22 SANJAY S/O. HUCHAPPA KURATTI,
AGE 46 YEARS, OCC: CONTRACTOR-WARD NO.48,
R/O. LIG 264, 11TH CROSS,
NAVANAGAR, HUBALLI - 580024
23 MANOHAR S/O. SRINIVASRAO DHARWADKAR
AGE 62 YEARS, OCC: CONTRACTOR WARD NO.7, 63 & 52
R/O. H.NO.20, SHANTPURAM LAYOUT,
NEAR J.K.SCHOOL, VIJAY NAGAR,
HUBBALLI-580024
24 BHARAT SANITARY AGENCY
BY ITS PROPRIETOR
KASHINATH S/O. HONAPPA KATRIMAL,
AGE 57 YEARS, OCC: CONTRACTOR-WARD NO.54,
R/O. INDIRA NAGAR, P.B.ROAD,
BANKAPUR CHOWK,
HUBBALLI-580024
25 SHREE KRISHNA CLEANING & SECURITY AGENCY
BY ITS PROPRIETOR,
MANJUNATH S/O. HUNMANTAPPA KINKERI,
AGE 32 YEARS, OCC: CONTRACTOR-WARD NO.50,
R/O. 3RD CROSS, KARAKI BASAVESHWAR NAGAR,
HUBBALLI - 580024
26 SHREE CLEANING SERVICES,
BY ITS PROPRIETOR
SHRIDHAR S/O. SURAINARAYANA KANAMAKKAL,
AGE 35 YEARS, OCC: CONTRCTOR-WARD NO.24,
R/O. INDIRA NAGAR, P.B.ROAD,
BANKAPUR CHOWK,
HUBBALLI - 580024
27 DURGADEVI CLEANING AGENCY,
BY ITS PROPRETOR
FAKIRSWAMI S/O. RAMAPPA RASLER
10
AGE 46 YEARS, OCC: CONTRACTOR - WARD NO.56,
R/O. INDIRA NAGAR, P.B.ROAD,
BANKAPUR CHOWK, HUBBALLI-580024
28 MALATESH S/O. NINGAPPA MORABAD,
AGE 39 YEARS, OCC: CONTRACTOR-WARD NO.62,
R/O. H.NO.88/2, 8TH CROSS,
KARAKI BASAVESHWAR NAGAR,
HUBBALLI - 580024
29 VENKATESHWAR SERVICES
BY ITS PROPRIETOR
SATISH CHANDRA S/O. RAMCHANDRA PATIL,
AGE 47 YEARS, OCC: CONTRACTOR-WARD NO.28,
R/O. H.NO.27, ADYAPAK NAGAR,
HUBBALLI-580032
30 VENKATESH S/O. NAGAPPA MORABAD,
AGE 47 YEARS, OCC: CONTRACTOR-WARD NO.58,
R/O. NEAR GANGADHAR NAGAR,
DEDAKERI HUBBALLI - 580024
31 SHRIDHAR S/O. VENKATESH DHARWADKAR,
AGE 51 YEARS, OCC: CONTRACTOR-WARD NO.53 & 54
R/O. H.NO.3A, KRISHNA APARTMENT,
CLUB ROAD, HUBBALLI - 580029
... PETITIONERS
(By SRI. V.M.SHEELVANT, ADV.)
AND
1 STATE OF KARNATAKA,
REPTD. BY ITS SECRETARY,
DEPARTMENT OF MUNICIPAL ADMINISTRATION,
BENGALURU - 560001
2 THE COMMISSIONER,
HUBBALLI-DHARWAD MUNICIPAL CORPORATION,
HUBBALLI.
... RESPONDENTS
11
(SRI. M.KUMAR, AGA FOR R1 ;
SRI M.B.NARAGUND, SENIOR COUNSEL FOR
SRI G.I.GACHCHINAMATH, ADVOCATE FOR R2)
THESE WRIT PETITIONS ARE FILED PRAYING TO QUASH
THE ORDER DATED 17.01.2017 BEARING
NO.HDMC/74/05/512/16-17 PASSED BY THE RESPONDENT NO.2
PRODUCED AT ANNEXURE-J.
*******
THESE PETITIONS COMING ON FOR ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
In all these Writ Petitions, the contractors of the Respondent-HDMC have laid a challenge to the Office order bearing No.HDMC/74/05/-512/16-17 dated 17.01.2017 issued by the Commissioner for the Hubballi-Dharwad Municipal Corporation, Hubballi whereby the service charges that were allegedly being paid to the Petitioners during the contract period at the rate of 10% has been revised to 7.5% of the wages payable to the Poura Karmikas.
2. The Petitioners have also sought for an appropriate Writ or a direction to the Respondent- Commissioner for HDMC restraining him from terminating 12 their contract relating to the solid waste management in the respective Wards in the jurisdictional limits of the Corporation.
3. All the Petitioners are engaged in the work of sold waste management which has been entrusted to them by the Respondent-HDMC by means of written contracts since 2009, preceded by tender notifications. Some of the Petitioners are also the contractors for supplying emergency labour to Respondent-Corporation. Initially the tenure of the contract was one year, however the same came to be renewed periodically year after year with no much change in the contractual terms.
4. The Petitioners contend that during the period between 2009 and 2012 all they were given the service charges at the rate of 10%. However, thereafter the Respondent-Corporation unilaterally denied the said benefit though the contractual services were availed till 2017-2018. The Petitioners contend that on the agitation of the Poura Karmikas pursuant to their representation dated 26.10.2016, 13 the Respondent-Commissioner for HDMC has unilaterally revised the service charges at the rate of 7.5% of the wages payable to the Poura Karmikas that too with effect from 01.12.2016 instead of 01.01.2012. Since, common questions of law and facts are involved, all the cases have been taken together with the consent of the parties for final disposal.
5. After service of notice, the Respondent-HDMC has entered appearance through its panel counsel Sri. G.I.Gachchinamath who resisted the petition by filing a detailed Statement of Objections. I have heard the learned counsel for the Petitioners Sri. F.V.Patil and Sri. V.M.Sheelvant. I have also heard the learned Senior Counsel Sri. M.B.Naragund who appeared for the Panel Counsel Sri Gachchinamath for the Respondent-Corporation.
6. The learned counsel for the Petitioners Sri. F.V.Patil and Sri. V.M.Sheelvant submit that the impugned order dated 17.01.2017 which unilaterally reduced the service charges from 10% to 7.5% is bad in law and that it virtually amounts to re-writing the contract between the 14 parties, which power the Respondent-Commissioner does not have either under the terms of the contract or under the provisions of Karnataka Municipal Corporation Act, 1976 (for short the 'Act').
7. The learned counsel for the Petitioners Sri. F.V.Patil and Sri. V.M.Sheelvant submit that, all the Petitioners were paid the service charge at the rate of 10% pursuant to the Cost Estimation of Street Sweeping, Brain Cleaning and Garbage Lifting Work, etc., a copy of which is at Annexure-C to the Writ Petition Nos.102468- 102472/2018.
8. Both the counsel for the Petitioners also add that the Respondent-Corporation HDMC, being a statutory authority is not justified in withholding / deducting various sums of money on account of Provident Fund payable to Petitioners' employees as if there is the employer-employee relationship between the Respondent-HDMC and the employees of the Petitioners ; the HDMC is not justified in 15 arrogating to itself the obligation to pay the Provident Fund to the employees of the Petitioners.
9. Both the learned counsel for the Petitioners in all these matters vehemently contend that the Respondent- Commissioner of the HDMC in gross dis-regard to the resolution of the HDMC dated 29.12.2011 at Annexure-D to Writ Petition Nos.102461-102465/2018 which provides for continuation of the contracts in question. They contend that the Respondent-Commissioner of the HDMC does not have power, competence or jurisdiction to disobey the statutory resolutions which are binding under the provisions of Section 72 of the Act.
10. The learned Senior Counsel Sri M.B.Naragund appearing for the panel counsel Sri G.I.Gachchinamath controverts the submissions of the learned counsel for the Petitioners stating that in the contract documents there is no provision for payment of 10% of service charges at all ; the reliance of the Petitioners on the document at Annexure-C to 16 the Writ Petition Nos.102468-102472/2018 which mentions 10% service charge is not well founded .
11. Learned Senior Counsel Sri Naragund submits that the Petitioners rights are those which arise from the terms and conditions of the written contracts and the question of terminating the contract of the Petitioners does not arise at all in as much as the contracts were renewed periodically and that they have come to an end by efflux of time there being no fresh & further renewal; the challenge to the Respondent's order dated 17.01.2017 is also unfounded both on law and on facts.
12. Lastly Sri Naragund contends that the disputed questions of facts under a contractual arrangement can never be a subject matter of adjudication in the extra ordinary jurisdiction under Articles 226 and 227 of the Constitution of India. He hastens to add that when a statutory body enters into a contract, its actions do not involve any public law element and therefore, invocation of Writ jurisdiction is legally impermissible.
17
13. I have considered the rival contentions urged at the Bar. I have also perused the pleadings of the parties and the documents accompanying the same. I have treated the subject with the headings for the ease of understanding the issues involved.
(A) Whether the Writ Petitions are maintainable?
(i) Learned Senior Counsel Sri M.B.Naragund contends that the rights that are being agitated by the Petitioners are under the instruments of contract ; when an instrumentality of the State like the Respondent-Corporation enters into a contract, it does it as a prudent businessman by wearing a mantle much different from the State as defined under Article 12 of the Constitution of India and therefore, all the actions of the Respondent which are relatable to the contract in question do not involve any public law element to warrant a scrutiny at the hands of Writ Court.
(ii) The Five Judge Bench of the Apex Court in the Case of LIC of India Vs. Escorts Limited reported in AIR 18 1986 SC 1370 at para 101 and 102 has answered the above question as under :
"While it cannot be doubted that every action of the State or an instrumentality of the State must be informed by reason and that, in appropriate cases, actions uninformed by reason may be questioned as arbitrary in proceedings under Act.226 or Art.32 of the Constitution, Art.14 cannot be construed as a charter for judicial review of State actions and to call upon the State to account for its actions in its manifold activities by stating reasons for such actions. For example, if the action of the State is political or sovereign in character, the Court will keep away from it. The court will not debate academic matters or concern itself with the intricacies of trade and commerce. If the action of the State is related to contractual obligations or obligations arising out of the tort, the Court may not ordinarily examine it unless the action has some public law character attached to it. Broadly speaking, the court will examine actions of State if they pertain to the public law domain and refrain from examining them if they pertain to the private law field."
(iii) The reply of the learned counsel for the Petitioners that they have laid a challenge to the specific 19 order dated 17.01.2017 made by the Respondent- Commissioner of the HDMC downwardly revising the rate of service charges from 10% to 7.5% and therefore, the same should be treated as a statutory order containing public law element does not merit acceptance since the Petitioners are claiming this benefit as a part of contractual bargain between themselves and the Respondent-Corporation. Therefore, the Writ Petitions are not maintainable, matter being essentially one arising from contractual arrangement between the parties.
(B) Whether impugned order dated 17.01.2017 alters the contractual terms?
(i) The counsel for the Petitioners contend that during the period between 2009 and 2012 the Respondent- Corporation has paid the service charge at the rate of 10% and therefore, even for the subsequent period when the contract was continued the service charges are liable to be paid by the Respondent-HDMC at the same rate. Both the counsel submit that now under the impugned office order 20 dated 17.01.2017, not only the Petitioner contractors have been denied the service charges for the subsequent period but they are now given the said charges with effect from 01.12.2016 that too at a reduced rate of 7.5%.
(ii) The Petitioners' counsel draw the attention of the Court to the undated document at Annexure-C to the Writ Petition Nos.102468-2472/2018 which is entitled "Cost Estimation of Street Sweeping, Brain Cleaning and Garbage Lifting Work, etc.," which mentions agency service charge at the rate of 10%. They contend that this rate was paid during the period between 2009 and 2012 and thus this has become part of the bargain between the parties and in any event the Respondent is estopped from contending to the contrary.
(iii) The learned Senior Advocate Sri Naragund submits that this document arises in the indoor business management of the Respondent-Corporation and that it was never made a part of the bargain between the parties sufficient to found a monitory claim dehors the contractual 21 document and therefore, the reliance on the said document is untenable either as a part of contract or on the doctrine of estoppel. He submits that, when the rights of the parties are governed by the contractual document, there cannot be super addition to the terms and conditions of the contract. There is much force in this argument and therefore, the contention of the other side is rejected.
C. Whether Petitioners are entitled to continuance or renewal of contract under the HDMC Resolution?
(i) The counsel for the Petitioners vehemently contends that the HDMC has passed a Resolution No.902 dated 29.12.2011 which reads as under:
"£ÀAvÀgÀ ¥ÀÆdå ªÀĺÁ¥ËgÀgÀÄ F PɼV À £ÀAvÉ DzÉñÀ ¤ÃrzÀgÀÄ.
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(ii) The learned counsel Sri F.V.Patil strenuously contends that these Resolutions are passed under the statutory powers available under the provisions of the Act and unless the same are suspended or varied or rescinded, there is an obligation resting on the Respondent-Corporation to renew the contracts or continue the same; in fact such renewal has been granted by the Respondent-Corporation several times and this warrants invocation of doctrine of Legitimate Expectation since Petitioners are accomplishing the task of cleaning the twin cities on day-to-day basis with no complaints whatsoever, for years. Therefore, this statutory obligation justifies their seeking refuge under the protective umbrella of Writ Court.
(iii) Per contra the Senior Counsel Sri M.B.Naragund banks upon the Government order dated 07.08.2017 at Annexure-R1 to the Statement of Objections dated 17.04.2018 filed in Writ Petition No.102468/2010. Relevant Paragraphs of the said order read as under:
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(iv) Learned Senior Counsel explains as to the circumstances that led to the said policy decision being taken by the State Cabinet headed by the Chief Minister and in the presence of all the concerned Cabinet Ministers. He adds that, the system of contract was resulting into the exploitation of Safai Karmachaaris and therefore there was an urgent need for putting an end to the same.
(v) Learned Senior Counsel contends that this order of the Government has not been challenged by the Petitioners and therefore, that silences whatever rights they claim under the Resolution in question. It is a settled legal position as stated by the Apex Court in the case of State of Punjab and others. Vs. Gurdev Singh and Ashok Kumar reported in AIR 1992 SC 111. The Apex Court quotes Prof. Wade at paras 6 & 7 as under:
"6. But nonetheless the impugned dismissal order has at least a de facto operation unless and 26 until it is declared to be void or nullity by a competent body or Court. In Smith V. East Elleo Rural District Council, 1956 Assistant Commissioner 736 at p.769 Lord Radcliffe observed:
"An order even if not made in good faith is still an act capable of legal consequences. It bears no brand of invalidity upon its fore-head. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders".
7. Apropos to this principle, Prof. Wade States: "the principle must be equally true even where the 'brand' of invalidity' is plainly visible; for there also the order can effectively be resisted in law only by obtaining the decision of the Court (See: Administrative Law 6th Ed. P.352). Prof. Wade sums up these principles:
"The truth of the matter is that the Court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the Court may refuse to quash it because of the plaintiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any 27 such case the 'void' order remains effective and is, in reality, valid. It follows that an order may be void for one purpose and valid fro another, and that it may be void against one person but valid against another" "
(vi) There is lot of force in this contention. In the absence of a challenge to the said Government Order, the Petitioners are not entitled to bank upon the Resolution of the Respondent-HDMC at all. Even going by the text of the said Resolutions also, the right claimed by the Petitioners do not seem to be choate and unconditional. In any case, they are not intended to create any justiceable right in the Petitioners dehors the written contracts.
D. Whether the Respondent-HDMC is justified in deducting the contractual amount for paying the PF or other levies of Poura Karmikas?
(i) Learned counsel for the Petitioners Sri. Patil and Sheelvant vehemently contend that the amount payable to the Petitioners be it under the contract or otherwise is Petitioners' property and withholding or denying the said 28 payment virtually amounts to acquisition of their property which is hit by Article 300A of the Constitution of India.
(ii) Learned counsel for the Petitioners vehemently submit that the contention of the Respondent-HDMC that the deduction of the amounts from the payables under the contract is stated to be toward the Provident Fund contribution of the employees of the Petitioners and therefore the HDMC is not justified in discharging the statutory obligation that virtually rests on the Petitioners who are their employers.
(iii) Per contra learned counsel Sri Naragund submits that the amount now deducted from the ones payable to the Petitioners under the contract is pursuant to the compulsive statutory order made by the competent authorities under Section 7A of Employees' Provident Fund and Miscellaneous Provisions Act, 1952 and therefore, the Respondent- Corporation had no option. He hastens to add that the legal compulsion a rising under the said Act is consistent with the stand of the Respondent-Corporation as expressed in the 29 Resolutions supra and also the Cabinet Decision aforementioned.
14. Learned counsel Sri Naragund takes the Court through the contents of Order dated 16.12.2014 made by the Assistant Provident Fund Commissioner at Annexure-R5 to the Statement of Objections filed in Writ Petition Nos.12461- 12465/2018. The said order specifically mentions about the liability of the Respondent-HDMC to pay towards the employer's contribution of Provident Fund even when the Poura Karmikas are the employees of the Petitioner- Contractors. Thus, the deduction effected by the Respondent under the statutory compulsion cannot be faulted.
15. However, the fairness requires that the Respondent-HDMC should furnish full material particulars to the Petitioners, such as the name and address of employees, the duration for which contribution towards PF is made, the rate and amount of contribution, the dates on which the contribution is made for each of the employees, etc., The Petitioner shall be entitle to make a representation to point 30 out errors in these particulars or errors of calculation so that any dispute or difference can be settled by the Commissioner for Corporation.
16. In the above circumstances, I make the following order:
(i) The Writ Petitions are disposed off. The Petitioners are not entitled to continuance or renewal of contract at the hands of the Respondent-HDMC, however, if in any circumstances, the Tender Contract System is received or resorted to even selectively or sporadically, the Petitioners will have a preferential claim for award of such contract;
(ii) The Petitioners are not entitled to Agency Service Charges beyond what is granted under the impugned Order No.HDMC/74/105/-512/16-17 dated 17.01.2017, whereunder the Service charges are awardable w.e.f 01.12.2016 at the rate of 7.5% of the total wages payable to the Poura Karmikas in the employ of the Petitioner;
(iii) The Respondent-HDMC is justified in deducting from the amounts payable to the Petitioners under the contracts, various sums of 31 money toward the Employees' Provident Fund or such other statutory compulsive levies;
(iv) The Respondent-HDMC shall furnish to the Petitioners all the material particulars of the deductions toward Provident Fund or such other compulsory levies made for the benefit of Poura Karmikas in the employ of the Petitioners within six weeks;
(v) The Petitioners after receiving all the material particulars relating to such aforesaid deductions are entitled to make a representation pointing out errors or defects resulting into their claim for re-
imbursement of the excessive or wrongfully made payments and that the Commissioner of HDMC, Hubballi shall consider such representations after hearing the Petitioners and their agents if any within next eight weeks.
Sd/-
JUDGE *Svh/-