This writ appeal sought to challenge a single judge's order dismissing a writ petition involving a contract dispute. The bench held that since the case raised serious disputed questions of fact necessitating evidence recording, the writ petition could not be maintained. The appeal was dismissed.
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IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH
DATED THIS THE 5TH DAY OF JANUARY, 2017
PRESENT
THE HON’BLE MR. JUSTICE A.S. BOPANNA
AND
THE HON’BLE MR. JUSTICE B.A. PATIL
WA.NO. 200563/2016 (GM-TEN)
BETWEEN:
S.M. Anand S/o Soma Bangera Aged about 53 years, R/at No.28, 2nd Cross K.K. Nagar, Basavana Bagewadi Road, Vijayapura – 586 103
…Appellant
(By Sri K.S. Shrihari, Advocate)
AND:
…Respondents
(By Sri Ashok Patil, Advocate for R1 & R4; Sri Sanjay M. Joshi, Advocate for R2 & R3)
This Writ Appeal is filed under Section 4 of the Karnataka High Court Act, 1961, praying to set aside the order passed in writ petition No. 204870/2015 dated 09.11.2016 and to allow the writ petition No. 204870/2015 in to as prayed by quashing Annexure ‘A’ dated 22.08.2015 bearing No. KBJNL/IBC/O&M/Dn.RMP/PB-1/2015-16/1086 and 19.08.2015 bearing No. KBJNL/IBC-O & M / Dn. RMP/ PB-1/2015-16/1065. As Annexure ‘B’ and bearing No.KBJNL IBC/O&M/Dn/RMP/PB-1/2015-16/1201 dated 05.09.2015 as Annexure ‘Q’, etc.
This appeal coming on for Preliminary Hearing this day, A.S.BOPANNA, J., delivered the following:-
JUDGMENT
The appellant and the respondents had entered into a contract for construction of Indi Lift Canal chainage from 128.00 to 135.00 kms. In respect of the said contract, the respondents have alleged that the appellant has not undertaken the work as required, within the time frame, and as such action was taken by the respondents to withdraw the work assigned to the appellant and further action was proposed.
respondents had filed their objection statement to the writ petition and had disputed the contentions put forth by the appellant in the writ petition. In addition, it was contended that a matter relating to contract which raises disputed questions cannot be considered in the writ petition. Learned Single Judge after taking note of the rival contentions, while adverting to the aspect as to whether the writ petition could be considered in a matter of the present nature has ultimately concluded as follows:
“9) Having heard learned counsel for both parties, I find from a careful perusal of the pleadings and entire materials on record that petitioner has entered into a contract with the respondents on 14.11.2013 to construct canal for a total distance of about 7 kilometers. He was required to complete the construction of the canal within 11 months. The allegation against him by the authorities was that he did not complete the canal work within the stipulated period. The stand taken by the respondents in the statement of
objections are that in spite of reminder notices issued on as many as three occasions, petitioner did not either reply to the notices or complied with the obligations under the contract. It is urged by the respondents that public interest has suffered on account of nonfulfillment of the obligations cast on the petitioner to complete the construction of the canal.
show that they had agreed to hand over the lands.
suit and as such, the writ petition could not be maintained while seeking to enforce a contract.
had arisen for consideration thought it fit to entertain as it was essential consideration of the terms of the contract.
before the learned Single Judge that the land owners had consented to permit the appellant to carry out the work and in that regard affidavits were relied upon. The learned counsel for the appellant would however contend that the persons who had sworn to the affidavit were not parties to the proceedings and as such the reliance placed on such affidavits cannot be considered by the Court in the present proceedings. In our view these aspects by itself would raise very serious disputed questions of fact where the Court in order to go into those aspects of the matter will require evidence to record finding of fact on the aspect whether the land owners of the lands where the work was to be executed had consented for the appellant to carry out the work and in that light despite the land being available whether the appellant had not carried out the work.
adjudicated by recording a finding of fact based on the evidence that was to be tendered by the parties, we are of the opinion that the learned Single Judge has not committed any error in arriving at the conclusion that the writ petition cannot be entertained in the present facts. Therefore, we see no error committed by the learned Single Judge so as to call for interference.
Sd/JUDGE
Sd/-
JUDGE
Sbs*
3 issues framed by the court
Whether a writ petition can be entertained to adjudicate serious disputed questions of fact arising in a public contract.
Whether the single judge erred in concluding that the writ petition was not maintainable when factual disputes existed.
Whether the land required for contract execution was made available to the appellant and if there was sufficient justification for non-performance.
Colour shows how this judgement treated each authority
ABL INTERNATIONAL LIMITED VS. EXPORT CREDIT GUARANTEE CORPORATION OF INDIA LIMITEDReferred¶41
S.M. Anand
Krishna Bhagya Jala Nigama Ltd.
A.S. BOPANNA
B.A. PATIL
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
