IN THE HIGH COURT OF KARNATAKA AT BANAGALORE
Writ Petition No /2018
(Original Jurisdiction)
BETWEEN:
M/s ABC Arts Pvt. Bengaluru,
Represented by its Assistant Manager
XYZ .…..Petitioner
AND
- PQR Bangalore Mahanagara Palike
N.R. Square, Bangalore 560001
Rep. By its Commissioner
- The Chief Engineer
Road Infrastruture
Bruhat Bangalore Mahanagara Palike
Anneuxe Building, 4th Floor,
N.R.Square, Bangalore 560 001
- The Executive Engineer
Road Infrastructure- Special Division,
Bruhat Bangalore Mahanagara Palike
Anneuxe Building, 2nd Floor,
N.R.Square, Bangalore 560 001
- The Superintendent Engineer
Road Infrastructure
Bruhat Bangalore Mahanagara Palike
N.R.Square, Bangalore 560 001 ...... Respondents
MEMORANDUM OF WRIT PEWTITION UNDER ARTICLE 226 & 227 OF THE CONSTITUTION OF INDIA
- The petitioner is a reputed outdoor Advertising Agency/contractor mainly carrying out large format hoardings, unipoles, Bus shelters etc including PPP private Public Partnership projects like construction of Skywalks, Medians and other outdoor solutions in Bangalore, Hyderabad, Vijayawada, Vishakhapatnam and Chennai for the last more than 50 years.
- That, more than 100 persons are employed by the petitioner at any given point of time depending on the amount of work/s on hand of the petitioner as per the requirement for Construction and maintenance of Hoardings, Skywalks, Bridges and Medians etc.
- It is submitted that the petitioner was awarded with the Tender for putting up construction of a Foot over Bridge (FOB)/Skywalk near Anil Kumble Circle- From LIC to Bible Society of India and form LIC to Fire Station on Design, Build, Finance, Operate and Transfer (DBFOT) basis. Copy of the Letter of Acceptance dated 30/04/2014 is herewith produced and marked as Annexure A
- That, thereafter petitioner was called upon by the 3rd respondent (Then Executive Engineer, Traffic Engineering Cell) to execute the Agreement after complying with the performance security in the form of Bank Guarantee for an amount of Rs.25,00,000/- failing which the tender awarded would be cancelled. Copy of the Letter dated 30/10/2014 addressed by the 3rd respondent to the petitioner is herewith produced as Annexure B.
- Thereafter upon petitioner executing the Agreement; petitioner was issued with the work order dated 8/12/2014 for the construction of Skywalks Skywalk near Anil Kumble Circle- From LIC to Bible Society of India and form LIC to Fire Station on Design, Build, Finance, Operate and Transfer (DBFOT) basis. Copy of the Agreement and the work order are produced as Annexures C and D
- Petitioner has thereafter initiated to start the work at the allotted site after getting the structural drawings and design approved by the 3rd respondent herein since, petitioner was required to align/support with the Tender sure drawings and accordingly petitioner has on several occasions written to the 3rd respondent requesting to share the drawings of the Tender Sure. But, however respondents failed to provide the same. Copies of the Letters in this regard are produced as Annexure E and E1 respectively .
- That, thereafter petitioner has further written to respondent No.3 to either share the required details in order to petitioner start the work or provide an alternate site at M.G.Road for construction of an integrated Skywalk since the delay in giving the structural drawings/clearance by the respondents at the allotted site was having financial implications on the petitioner . Copies of letters are produced as Annexure F series.
- That, petitioner after having several meetings with the respondents and after having been assured of a suitable alternate location being provided for construction of the Skywalk; 3rd respondent finally issued the order/communication dated 16/09/2016 providing alternate location for construction of Integrated SKYWALK which is for two roads i,e from Cubbon park corner to KSCA Stadium gate on Queen’s road and from Mahatma Gandhi Park to Bible Society compound on M.G.Road after taking necessary approval from the first respondent-Commissioner, BBMP; 3rd respondent further directed to execute a Supplementary Agreement in this regard. Copy of the said letter is herewith produced as Annexure G. That, accordingly Supplementary Agreement dated 16/09/2016 also came to be executed between the petitioner and the 3rd Copy of the agreement is produced as Annexure H.
- Petitioner has thereafter got done the Soil Penetration test at the site and has also furnished the preliminary Concept Design, Structural drawings for necessary approval by the respondents. That, the 3rd respondent has on 27/09/2017 written to the petitioner to get the Preliminary Structural Drawings approved by the Third party inspection team and start the work at the earliest and further to make all necessary arrangements for the Bhoomi Pooja on 4/10/2017. Copy of the said letter dated 27/09/2017 is produced as Annexure J.
- Petitioner on 5/10/2017 has submitted the original set of foundational architectural and Foundational drawings after being duly approved/inspected by the third party- STEDRANT TECHNOCLINIC PVT.LTD. for necessary approval by the 3rd respondent with a request to approve and return one set of the same in order to start the work of construction of the Skywalk. Copy of the letter is produced as Annexure K.
- Thereafter the 3rd respondent at the request of the petitioner has written to the concerned Traffic department to extend all co operation to the petitioner to start the work and accordingly the necessary permission has been granted to start the work.
- It is submitted that, thereafter the 3rd respondent vide his letter dated 9/11/2017 has informed the petitioner that, as per the discussion by the 2nd respondent during the time of his inspection of site he has suggested that, the Gap between the steel columns to the SKYWALK needs to be widened/extended in order to ensure that, there is absolutely no obstruction to the vision of Mahatma Gandhi statue; and, as such directed the petitioner to provide fresh Structural Design and drawings for the approval. It is further stated that, in the said letter itself there is reference to the Area MLA having performed the Stone laying Pooja at the site and as such requested the petitioner to speed up the project. Copy of the Letter is produced as Annexure L. Petitioner has accordingly and as per the advise/directions as per Annexure L letter furnished the revised Structural design and drawings along with necessary approval from Third party Agency. All the concerns in relation to causing obstructions to Mahatma Gandhi Statue were suitably addressed by the petitioner by shifting the columns in front of Mahatma Gandhi Statue. Copies of the Letters addressed to the third respondent on 4/12/2017 and 7/12/2017 are produced as Annexure M and N respectively. Copy of the Digitally prepared structural design and drawing of the proposed Integrated SKYWALK is produced as Annexure P
- It is now respectfully submitted that, petitioner who had in the meanwhile made all the arrangements for constructing the Integrated SKYWALK started the construction work by making huge investments and finished the concrete foundation work by the end of December 2017. Copies of the photographs showing laying of concrete foundation for erecting the pillars/structures are produced as Annexure Q.
- Petitioner has already invested/spent a huge sum of Rs. 46,97,846/- as payment made to various vendors for providing various services such as preparation of structural drawings, consultancy charges including Third party Agencies, Surveyors charges, Labour costs, Engineers and contractors Employed for Civil works, Civil and Steel Material costs and construction of the concrete foundation and Steel columns as per the approval given by the respondents and the same having been purchased for this specific structure/design cannot be made use for any other construction activity. Copy of the Certificate issued by the Chartered Accountant towards the money already spent and the further liability of the petitioner is produced as Annexure R.
- When this being the position and petitioner was all set to proceed further with the project; petitioner was shocked to receive a letter dated 5/1/2018 issued by respondent No.3 on the instructions of Minister, Bangalore Development and Town planning, Govt. of Karnataka, asking the petitioner to temporarily stop the work of construction of SKYWALK in the view of reports carried out in the Newspapers. The letter does not even specify what kind of reports being carried out in the Newspapers. Copy of the letter dated 5/1/2018 is produced as Annexure S
- Thereafter on 7/1/2018( Sunday) which is a Public Holiday has informed one of the employee of the petitioner company through `WHATSAPP` as follows “ As per Commissioner Sir order, you are requested to remove the foundation structure immediately” . Copy of the Hand written note is produced as Annexure T.
- It is submitted that, thereafter respondent No. 3 has passed the order dated 8/1/2018 thereby cancelling the Tender awarded to the petitioner for construction Integrated SKYWALK from Cubbon park corner to KSCA Stadim gate on Queen’s road and from Mahatma Gandhi Park to Bible Society Bible Society compound on M.G.Road without assigning any reasons except saying that the Superintendent Engineer, Road Infrastructure on 7/1/2018 had done site inspection and ordered for cancelling of the construction. The order further directs the petitioner to remove the foundation and debris within the next three days. Copy of the said letter dated 8/1/2018 impugned herein is produced as Annexure U.
- Petitioner has given representation dated 12/01/2018 to the 3rd respondent bringing out the illegality committed in passing the impugned order and further requesting minimum of 15 days to remove the foundation already laid as well the debris since, the office of the petitioner at Bangalore is only a Regional office and it needs to consult its Head Office situated at Vijayawada (Andhra Pradesh) with regards to the next course of action in the subject issue. Copy of petitioner’s letter is produced as Annexure V.
- It is submitted that, the order at Annexure U passed by respondent No.3 is illegal and as such cannot be sustained in the eyes of Law; there are absolutely no reasons assigned/forthcoming for passing the impugned order cancelling the Tender awarded in favour of the petitioner for construction of the Integrated Skywalk. Further it to be noted that, since, petitioner was not given the required co-operation to carry on with the construction of SKYWALK at the original location (Anil Kumble Circle) respondent Nos 2 to 4 after considering all the aspect and after obtaining necessary orders/approval from the 1st respondent permitted the petitioner to start/proceed with the work of putting up Integrated Skywalk near KSCA Stadium. It is relevant to note that, Commissioner ( At para 110 of the notesheet) after considering all the relevant factors including the benefit/s/usage of the SKYWALK at the present location to the large general public who visit the KSCA Stadium, Cubbon Park.
- Respondents are now trying to illegally/forcefully demolish/level the foundation structure built by the petitioner after spending nearly 50 Lakhs. Copies of the photographs showing present status at the site are produced as Annexure W
- In the circumstances the order at Annexure U passed by 3rd respondent cancelling the Tender awarded to the petitioner for construction of Integrated Skywalk without assigning any reasons being illegal and Arbitrary moreso, after making the petitioner to invest its time/energy/labour and making the petitioner to spend nearly 50 Lakhs in laying the concrete foundation and related works; petitioner is before this Hon’ble Court challenging the order of cancellation at Annexure U on the following amongst other grounds.
- Petitioner has not preferred any other petition, Appeal or revision on the same cause of action before this court or any other court, authority or tribunal.
G R O U N D S
- The order passed by respondent No.3 as per Annexure U thereby cancelling Agreement dated 8/12/2014 and the Supplementary Agreement 16/09/2016 entered into for execution of the work of construction of Integrated SKYWALK is on the face of it is illegal and Arbitrary.
- The impugned order is passed in clear violation of principals of natural justice. Petitioner was not given any opportunity before the passing of the impugned order. The unilateral cancellation of the Work order now passed amounts to breach of a concluded contract accepted by both the petitioner and the respondents.
- Petitioner has been provided all the co-operation by the respondents for the construction of the Integrated SKYWALK and has been made to invest a sum of Rs. 47,97,846/ - towards construction of the same uptill the passing of the impugned order. The petitioner cannot be penalized for taking up the work of construction of SKYWALK which is the need of the hour considering the safety of the general public in the background of increase of vehicular movement on the roads.
- The impugned order passed by the 3rd respondent cancelling the award of contract to construct SKYWALK is the result of non application of ones mind to the matter. It does not give/mention any reason for the same except stating that, 4th respondent did the site inspection and ordered for cancellation of the work awarded to the petitioner.
- The impugned order belittles the effort of the petitioner in putting up a world-class standard Integrated SKYWALK; the whole exercise was carried out by the petitioner at the behest of the respondents wanting to provide safety to the pedestrians; pedestrians being the worst sufferers due to the increase in vehicular traffic in the City of Bangalore.
- The impugned order is writ large of Arbitrariness on the part of the respondents who cannot be permitted to act at their whim and fancies. The order by the 3rd respondent to cancel the work order is passed at the behest of the Urban Development Minister, State of Karnataka. The same amounts to non application of ones mind to the matter/issue on hand.
GROUNDS FOR INTERIM PRAYER
The impugned order as per Annexure U is passed in clear violation of principals of natural justice and without application of ones mind to the matter on hand. The order now passed does not give any reasons for cancelling the construction of Integrated SKYWALK; it is relevant to state the present location has been cleared by all concerned and petitioner was through out prompted to put up the construction at the earliest; which factor the petitioner was very much aware and hence, had finished the foundation work within one month from the date of final Structural design and drawings being approved on 7/12/2017. Respondents are now trying to illegally demolish/clear/level the concrete foundation. Therefore, it is just and necessary to stay the impugned order under Annexure-U and further direct the respondents not to remove/demolish the foundation put up by the petitioner as per photographs at Annexure Q .
P R A Y E R
(i) Call for the records.
(ii) Set aside/quash the impugned order dated 8/1/2018 passed by the 3rd respondent in NO.EE/RI(SPL.DIV)/PR/00/2017-18 (Annexure U to the petition)
(iii) Issue a writ of mandamus directing the respondents to permit the petitioner to complete the construction of Integrated SKYWALK as per the order dated 16/09/2016 issued by the 3rd respondent ( Annexure G)
(iv) Award damages for the breach of a concluded contract and for demolishing the existing/already constructed concrete foundation built at the cost of Rs.46,97,846/- spent by the petitioner towards preparation of structural drawings, consultancy charges including Third party agencies, Surveyors charges, Labour, Civil material and Steel Material costs and construction of the concrete foundation etc. (Annexure R)
(v) Pass such other orders as this Hon’ble Court deems fit in the circumstances of the case, in the interest of justice and equity.
INTERIM PRAYER
Pending disposal of the above petition, this Hon’ble Court be pleased to pass an interim order staying all further proceedings including the high handed action to demolish the Concrete foundation and Steel Bolts at two landings on Cubbon Park footpath side and Mahatma Gandhi Park Side illegally sought to be done by the respondents pursuant to the Impugned order at Annexure U in the interest of justice.
SCHEDULE PROPERTY
Concrete Foundation on Cubbon footpath side and Concrete Foundation on Mahatma Gandhi Park Side built for the Proposed Integrated Skywalk from Cubbon park corner to KSCA Stadium gate on Queen’s road and from Mahatma Gandhi Park to Bible Society compound on M.G.Road site
Bangalore
Date : Advocate for the Petitioner
ADDRESS FOR SERVICE
Advocate
No.00/8/00
Bangalore 560 080
IN THE HIGH COURT OF KARNATAKA AT BANAGALORE
Writ Petition No /2018
Between:
M/s ABC Arts Pvt.Ltd .... Petitioner
And:
PQR Bangalore Mahanagara Palike
and others .... Respondents
SYNOPSIS
1) 14/12/2014 . Petitioner was given with the work order and on the same date Agreement came to be executed between the petitioner and the 3rd respondent for construction of SKYWALK near COD Circle- From LIC to Bible Society of India and form LIC to Fire on Design, Build, Finance, Operate and Transfer (DBFOT) basis.
2) 16/09/2016: Since, petitioner was required to align/support with the Tender sure drawings and build the SKYWALK petitioner has written on several occasions to 4th respondent requesting to share the drawings of the Tender Sure. Since, respondents failed to provide the same; they finally permitted the petitioner to build the Skywalk at an alternate location i,e from Cubbon park corner to KSCA Stadim gate on Queen’s road and from Mahatma Gandhi Park to Bible Society Bible Society compound on M.G.Road.
3) 5/1/2018: Respondent No. 3 referring to the Newspapers reports issues letter directing the petitioner to temporarily stop the construction of SKYWALK work.
3) 8/1/2018: Respondent No.2 has cancelled the construction of Integrated SKYWALK from Cubbon park corner to KSCA Stadium gate on Queen’s road and from Mahatma Gandhi Park to Bible Society Bible Society compound on M.G.Road without assigning any reasons.
BRIEF FACTS
The petitioner was awarded with the tender for putting up Integrated SKYWALK at COD Circle but, however since the respondents did not provide with the structural drawings of Tender sure to enable the petitioner to align since, petitioner was required to align/support with the Tender sure drawings; petitioner was provided with alternate location near KSCA Stadium to construct the Integrated SKYWALK. Petitioner has laid the concrete foundation at the changed location as per the approved structural designs and drawings by the respondents by spending/investing huge amount of nearly 5o Lakhs till date. Respondent No.3 has now passed the impugned order dated 8/1/2018 cancelling the tender and further directing the petitioner to remove foundation.
Date: .02.2018 Advocate for Petitioners
Place : Bangalore
IN THE HIGH COURT OF KARNATAKA AT BANAGALORE
Writ Petition No /2018
Between:
M/s ABC Arts Pvt.Ltd .... Petitioner
And:
PQR Bangalore Mahanagara Palike
and others .... Respondents
VERIFYING AFFIDAVIT
I, V.N.XYZ S/o A.V.N DOC, Aged about 47 years, Assistant Manager, M/s ABC Arts Pvt.Ltd. No.120/1, 2nd Floor, BOP Complex, Infantry Road, Bengaluru, do hereby state on oath as follows;
- I, am the authorized representative of the petitioner in the above petition and I, am well conversant with the facts of the case.
- I, state that the statements made in the accompanying petition at Paragraphs No 1 to are true and correct to the best of my knowledge and information.
- I, state that Annexure A to are true copies of the original.
- I, state that what is stated herein above is true and correct.
Date:
Place:
Identified by me DEPONENT
Advocate
No. of corrections
IN THE HIGH COURT OF KARNATAKA AT BANAGALORE
Writ Petition No /2018
Between:
M/s ABC Arts Pvt.Ltd .... Petitioner
And:
PQR Bangalore Mahanagara Palike
and others .... Respondents
I N D E X
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Sl. No. |
Particulars |
Pages |
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1. |
Synopsis |
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2. |
Memorandum of Writ Petition |
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3. |
Affidavit |
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4. |
Annexure-A: Letter of Acceptance |
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5. |
Annexure-B: Letter to the petitioner to execute the agreement |
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6. |
Annexure-C : Copy of the Agreement dated 08/12/2014.. |
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7. |
Annexure-D- Copy of the Work order dated 08/12/2014.. |
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8. |
Annexure-E: Letter of the petitioner to 3rd respondent |
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9. |
Annexure-E1: Letter of the petitioner 3rd respondent |
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10 |
Annexure F- Letter of the petitioner 3rd respondent |
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11 |
Annexure G- Letter to the petitioner dated 16/09/2016 to execute supplementary Agreement |
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12 |
Annexure H- Copy of the supplementary agreement |
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13 |
Annexure J- Letter of the 3rd respondent dated 27/09/2017 |
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14 |
Annexure K- Petitioner’s covering letter about the third party agency approval |
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15 |
Annexure L- Letter of the 2nd respondent to the petitioner to widen the Gap between two columns |
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16 |
Annexure M- Covering Letter of the petitioner dated 4/12/2107 submitting the preliminary drawings |
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17 |
Annexure N- Covering Letter of the petitioner dated 7/12/2107 informing about the third party agency approval of the structural drawings |
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18 |
Annexure P-Digitally prepared structural drawings of the Integrated SKYWALK |
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19 |
Annexure Q- Photographs of the Concrete foundation |
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20 |
Annexure R- Chartered Accountant certificate for the expenses incurred by the petitioner |
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21 |
Annexure S- Copy of letter dated 5/1/2018 directing to stop the construction work temporarily |
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22 |
Annexure T- Hand written note sent through Whatsapp |
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23 |
Annexure U- Impugned order dated 8/1/2018 issued by the 3rd respondent |
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24 |
Annexure V- Letter dated 12/01/2018 of the petitioner addressed to 3rd respondent |
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25 |
Annexure W- Copies of the latest photographs |
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26 |
Vakalath |
Date: .02.2018 Advocate for Petitioner
Bangalore
