1 R IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE30h DAY OF MAY2016BEFORE THE HON'BLE Dr.JUSTICE VINEET KOTHARI WRIT PETITION No.23967/2016 c/w WRIT PETITION No.21491/2016(LB-BMP) BETWEEN: SRI S GAUTAM RAJ AGED45YEARS, S/O. KHN SIMHA, R/AT No.1988, 1-D-MAIN ROAD, VIJAYANAGAR-2ND STAGE, BENGALURU56004 (BY SRI. MANU KULKARNI, ADV. FOR M/S.COMMON LAW CHAMBERS ) AND:
1. ... PETITIONER (COMMON) BRUHAT BENGALURU MAHANGARA PALIKE REP. BY ADDITIONAL COMMISSIONER (WEST) SAMPIGE ROAD, MALLESHWARAM BBMP, BENGALURU56000. EXECUTIVE ENGINEER - CHAMARAJPET DIVISION2D FLOOR, BBMP COMPLEX, J.C. ROAD, BENGALURU56000.
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3. BRUHAT BENGALURU MAHANGARA PALIKE REP. BY JOINT COMMISSIONER (WEST) SAMPIGE ROAD, MALLESHWARAM BBMP, BENGALURU56000 ... RESPONDENTS IN W.P.23967/2016 2 1. BRUHAT BENGALURU MAHANGARA PALIKE REP. BY ADDITIONAL COMMISSIONER (WEST) SAMPIGE ROAD, MALLESHWARAM BBMP, BENGALURU56000. EXECUTIVE ENGINEER - CHAMARAJPET DIVISION2D FLOOR, BBMP COMPLEX, J.C. ROAD, BENGALURU56000. SRI.N.VENKATESH AGE MAJOR S/O SRI.NARASIMHULU R/AT No.61, 4TH CROSS, JJR NAGAR SOUTH, BENGALURU-560 018.
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3. ... RESPONDENTS IN W.P.21491/2016 (BY SRI.VIVEK REDDY, SR.COUNSEL FOR SRI.B.S.GOUTHAM, ADV. FOR R1-R3) W.P.No.23967/16 IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE LETTER DTD:7.4.2016 ISSUED BY R-2 PRODUCED AT ANENXURE-H & ETC., W.P.No.21491/2016 IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE CHANGE ORDER
DTD:7.4.2016 ISSUED BY R-2 PRODUCED AT ANENXURE-G & ETC., THESE W.Ps. COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:- “Work or Perish” is the bedrock of good ORDER
governance. In our democratic set up, those who do not work and deliver are to perish, be it Governments or 3 elected body heads or even the contractors engaged by public bodies to deliver public service.
2. The Municipal Corporations are entrusted with the job of maintaining the cleanliness of the town or city and they generally give such work contract to the private parties and the present petitioner before this Court is one such contractor.
3. The petitioner by these two writ petitions claimed identical relief against the respondents-BBMP for substituting him in a contract to undertake cleaning of solid waste in ward No.139/B of Chamarajpet (excluding K.R.Market) and for quashing of the letter dated 07.04.2016 issued in favour of another person one Mr.N.Venkatesh who has sought impleadment in W.P.No.23967/2016 listed today before the Court. The previously filed W.P.No.21491/2016 is not on Board today, but since the arguments in the case listed before this Court were finally heard for both the connected 4 cases and that matter was also directed to be listed today before the Court. Both the writ petitions are being disposed of by this common order. The prayers made in both the writ petitions are quoted below for ready reference.
4. The prayers made in W.P.No.23967/2016 are as follows:- “(i) Issue a writ, order or direction of certiorari or in the nature of certiorari quashing the letter dated 7.4.2016 bearing Ref No.Ka.Pa.Aa(CHAPE)/PR/22/16-17 issued by R-2 produced at Annexure-H; (ii) in Issue a writ, order or direction of mandamus or the nature of mandamus directing R-1 & R-2 to permit the petitioner to continue to provide men and machinery in the supply order accordance with dtd:31.12.2013 ref No.EE(CMPT) (W.O)/PR/41/13-14 produced at Annexure-B. bearing (iii) Issue a writ, order or direction of mandamus or the nature of mandamus commanding Respondents No.1 & 2 to refrain from terminating the supply order issued in favour of in 5 petitioner without compliance with the due process of law including principles of natural justice”. The prayers made in W.P.No.21491/2016 are as follows:- “(i) (ii) (iii) Issue a writ, order or direction of certiorari or in the nature of certiorari quashing the change order dated 07.04.2016 Ref No.Ka.Pa.Aa(CHAPE)/Wo/PR/22/16-17 (Annexure-G), issued by Respondent No.2; bearing in directing Issue a writ, order or direction of mandamus or the nature of mandamus Respondents Nos.1 & 2 to permit the petitioner to continue to provide men and machinery in accordance with the supply order dated 31.12.2013 bearing ref No.EE(CMPT) (W.O)/PR/41/13-14 produced at annexure-B; in refrain Issue a writ, order or direction of mandamus or the nature of mandamus commanding Respondents Nos.1 and 2 from terminating the supply order issued in favour of petitioner and /or issuing a supply order respect of ward no.139/b to Respondent-3 or any other third party without compliance with the due process of law including principles of natural justice;” to in 6 5. Sri.Manu Kulkarni, learned counsel appearing for the petitioner explaining certain documents annexed with the writ petitions in Kannada language in English, subject to verification by the opposite counsel, since the undersigned was not acquainted with the local language, submitted that the present petitioner was awarded a work order for undertaking the work of supplying men and machinery for cleaning of ward No.139/B vide Annexure-B dated 31.12.2013 and for last about 2½ years, he was doing that work to the satisfaction of the Authorities concerned of the BBMP, but on account of the intervention of the local MLA, the contract given to him was terminated and cancellation order Annexure-H dated 07.04.2016 was issued to him while giving the said work to another person namely Mr.N.Venkatesh vide communication Annexure-G of the same date 07.04.2016. He submitted that the respondent-Corporation has not given any show cause notice to the petitioner and heard him properly in the 7 matter before deciding to substitute him for the said purpose of cleaning of ward No.139/B and appointing another person Mr.N.Venkatesh for the said purpose. He also raised question against the procedure adopted by the respondent-Corporation for appointing another party for the said work and pointing out to certain office order sheet entries of the respondent-Corporation Annexure-E in Kannada language, he submitted that only on 01.02.2016, the concerned officer Superintending Engineer(West) of BBMP, Bangalore, had recorded his satisfaction of the satisfactory work being done by the petitioner and therefore, there was no occasion for the respondent-BBMP to suddenly terminate the contract in favour of the petitioner on 07.04.2016 and issue the work order in favour of Mr.N.Venkatesh. He also placed reliance on certain case laws including in the case of Dipak Babaria vs. State of Gujarat [2014(3) SCC502, the detailed 8 reference to which is not considered necessary here in the present case, for the following reasons.
6. Per contra, the learned counsel appearing for the respondents-BBMP and applicant Mr.N.Venkatesh vehemently opposed the submissions made at bar by the learned counsel for petitioner and even submitted that the petitioner has sought to abuse the process of this Court by filing two writ petitions for the same cause and relief, namely, W.P.No.21491/2016 and the present W.P.No.23967/2016. Learned counsels also pointed out that earlier writ petition was argued by the same learned counsel for petitioner on 20.04.2016, when only notices were issued to respondent No.3 in W.P.No.21491/2016 and Junior Law Officer was directed to take notice for respondents 1 and 2, the matter was again posted to 22.04.2016 and when again, a week’s time was allowed to the learned counsel for petitioner to take steps in respect of respondent No.3 9 and matter was directed to be posted immediately after service on respondent No.3, but while no interim relief was given to the petitioner for the previously filed writ petition on 22.04.2016, in the subsequently filed writ petition in W.P.No.23967/2016, which was filed on 21.04.2016, an ex-parte blanket interim order was obtained on 23.04.2016 to the effect; “Stay, as prayed, for a period of four weeks”. The learned counsel for the respondents-BBMP submitted that they have also filed an application seeking the vacation of the said ex-parte interim order dated 23.04.2016, but they submitted that the petitioner had no occasion to file the subsequent writ petition, as the relief claimed by the petitioner remains the same in both the writ petitions and therefore, it was an abuse of process of law by the petitioner to file subsequent writ petition and seek ex-parte order which was not granted in the previously filed writ petition. 10 7. Controverting the submissions made on merits also, the learned counsel for the respondents-BBMP pointed out that there is no fixed term in the work order given to the petitioner for the work assigned to him under the order Annexure-B dated 31.12.2013 and on account of several complaints and no proper response from the petitioner on show cause notices issued to him in sequence, the respondent-Corporation was left with no option but to remove him from the said work and assign the said work to another person Mr.N.Venkatesh. The dates of such show-cause notices given to the petitioner for which, no proper explanation according to the respondents-Corporation was submitted are given in Annexure-G namely, 06.04.2016, 22.03.2016, 14.01.2016 and 01.04.2016. Thus, learned counsel for the respondents urged that both the writ petitions deserve to be dismissed, as the petitioner cannot claim any vested right to continue him with the work of cleaning order in ward No.139/B of Chamarajpet. 11 8. I have heard the learned counsels and though the matter has come up today of deciding the interim applications, this Court is satisfied that both the writ petitions deserves dismissal at this stage itself. The reasons are as follows; 9. Firstly, the petitioner cannot claim any vested right to continue with the work of cleaning the said ward No.139/B. Annexure-B work order dated 31.12.2013 admittedly is not for any fixed period, which was yet to expire. It was a particular work assigned to him in a particular ward No.139/B. It is needless to say that the satisfaction of the work performed by the petitioner-contractor is the subjective satisfaction based on relevant considerations, of the relevant Authorities of the respondent-Corporation and the petitioner cannot claim the continuity of contract on the basis of the previous satisfaction report Annexure-E pointed out by the learned counsel for petitioner which should entitle 12 him to continue with the said work for all times to come. There cannot be any standardized yardstick against which the performance of such contracts can be evaluated or measured by this Court. The case is apparently in the realm of question of facts happening on day to day basis, an enquiry into which is necessary to decide the question of fairness or arbitrariness on the part of the Authorities of the BBMP and which exercise cannot certainly be undertaken in the extraordinary writ jurisdiction of this Court under Article 226 of the Constitution of India. This Court is also of the opinion that the award of the work contract to a contractor for cleaning of a Ward cannot be treated at par with a contract of employment in public service or something like that, where a job security is embedded in the very nature of the employment. The performance of day to day work by a contractor through his agents, employees or workmen can only be monitored and supervised by the concerned Authorities of the Municipal Corporation. 13 10. In the present case, it appears, though no relevant communication of the Member of the Legislative Assembly was placed on record before this Court for perusal, that if the concerned MLA had to intervene in the matter and bring it to the notice of the Authorities of the Municipal Corporation that the work of cleaning of ward No.139/B of the City is not being performed satisfactorily and properly, this Court views it seriously against the petitioner that for MLA of the area concerned had to raise such a grievance before the concerned Authorities of the BBMP, which must have come through him only after the public or residents of the said area at large must have raised such grievance several times prior to that.
11. Be that as it may, this Court is neither called upon to pronounce upon the lack of performance or otherwise of the petitioner in the present case. But this Court is of the considered opinion that the 14 dissatisfaction or satisfaction about the performance of the work given to such contractors in such cases, is an aspect which cannot be gone into by this Court under Article 226 of the Constitution of India, particularly when the work order was neither for a fixed period nor any law provides for any vested continued right for the petitioner to continue such work for all times to come or for a fixed period which is yet to expire.
12. This Court also views it seriously that the petitioner has tried to ride two horses at a time by filing two writ petitions almost consecutively with a shade of difference for alleged cause of action in filing the subsequent writ petition though in substance there was none. Having failed to secure interim order in the previously filed W.P.No.21491/2016 on 20.04.2016 and 22.04.2016, the same counsel filed subsequent W.P.No.23967/2016 on 21.04.2016 and succeeded in convincing the co-ordinate bench of this Court to obtain 15 ex-parte interim order on 23.4.2016 which permitted him to continue with the said work even after 07.04.2016 up till now, even though his work order stood cancelled and another contractor was appointed on 07.04.2016. Though as pointed out by learned counsel for the petitioner that at page-8 of the present writ petition a mention of the previously filed W.P.No.21491/2016 has been made this Court has its own doubt, whether while arguing the case on 22.04.2016, the fact of pendency of the previously filed W.P.No.21491/2016 and no interim relief had been granted there was brought to the notice of the learned single Judge on 23.4.2016 or not. The alleged difference in the two writ petitions or cause of action which made the petitioner to file these two writ petitions and subsequent writ petitions was filed to challenge the termination notice dated 07.04.2016, is not a convincing reason at all. The impugned termination notice in the present writ petition No.23967/2016 if it 16 was served later on could have been very well brought to the notice of this Court in the previously filed W.P.No.21491/2016, when that matter was being argued by learned counsel for the petitioner on 20.04.2016 and 22.04.2016 and if necessary, by seeking an amendment in the pleadings in the previously filed writ petition itself, but for the reasons best known to the petitioner and the learned counsel for the petitioner, it was not so done.
13. The extraordinary jurisdiction under Article 226 of the Constitution of India is essentially an equity jurisdiction and the entire foundation of the writ petitions are based on the affidavits of the parties concerned which are to be taken at their face value subject to the evidence or documents with the writ petition or subject to the objections of the respondents and their affidavits. Therefore, unless the conduct, affidavits, proceedings and pleadings of the petitioner 17 inspires complete confidence that the petitioner has approached the Court with clean hands, then this jurisdiction cannot be allowed to be used by such unscrupulous litigants. Filing of the multiple writ petitions for the same cause of action or for subsequently happening facts which though technically speaking would give raise to a fresh cause of action whereas in substance it does not and when all such multiple writ petitions are not being placed before the same Court at one point of time, it allows this fulcrum of justice to be misused and abused by such an unscrupulous litigants and therefore, whenever such instance come to the notice of the Court, the iron hand of justice has to come down heavily upon such unscrupulous litigants who would always seek shelter under the kind of nuances or difference as pointed out in the present case also before this Court today. 18 14. This Court is not inclined to accept such explanation at the face value and after hearing the learned counsel in the present case, this Court is satisfied that the petitioner in the present case while losing a legal battle adopted, a rather unfair method by filing two writ petitions for the same cause. This is nothing but an abuse of the process of law. The petitioner must therefore pay costs for this.
15. In view of the aforesaid reasons, while this Court finds that the petitioner has no legal ground to get any relief in the present case against the respondents-BBMP, as he cannot claim any vested right in continuing with the work order in question for indefinite period, the conduct of the petitioner also is not above the bound which is required to be maintained by the litigants while invoking the writ jurisdiction under Article 226 of the Constitution of India. 19 16. Therefore, both the writ petitions are accordingly dismissed with cost of Rs.10,000/- in each case to be paid by the petitioner to the respondent- BBMP. In view of the disposal of these writ petitions, interim applications do not survive for consideration and are accordingly dismissed. Sd/- JUDGE Srl.