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2016 DIGILAW 492 (KAR)

T. R. Srinivas v. Superintendent Engineer (West), B. B. M. P. , Bhashyam Park, Sheshadripuram, Bengaluru

2016-06-29

VINEET KOTHARI

body2016
ORDER : Vineet Kotharj, J. 1. Mr. Aswathanaryana Reddy, Adv for Petitioner Mr. V. Sreenidhi, Adv for Respondent Nos. 1 to 3 2. The petitioner T.R. Srinivas is aggrieved by the substitution of his contract of cleaning of Ward No. 120-B by providing manpower of 10 municipal workers (poura karmikas) for cleaning of the said Ward No. 120-B. 3. Learned Counsel for the petitioner urged that the petitioner has been assigned the said job of cleaning Ward No. 120-B on 25-8-2012 which was later on extended on 29-1-2013. He also submitted that his mother Smt. Chikkanalli retired from the post of Sweeper/Poura Karmiki on 31-3-2004. The case sought to be made out in the present writ petition is that the respondents-authorities of the BBMP have suddenly substituted the petitioner by another person Sri S. Kemparaju with effect from 1-4-2016 by issuing Work Order, Annexure-N for cleaning of the said Ward No. 120-B and that has been done on the basis of a complaint or representation of the local Municipal Corporator Mr. D. Pramod for Ward No. 120-B, Annexure-J, a copy of which is annexed to the writ petition in which the said Corporator has written to the Joint Commissioner (West), BBMP, Bangalore that the contractor Srinivas, the present petitioner, is not performing the work properly and in this regard complaints were received from general public and therefore it was requested to cancel his contract and issue work order to one Kemparaju who is also the son of a municipal worker. The learned Counsel for the petitioner urged that the substitution of the present petitioner has been done for extraneous reasons and without affording an opportunity of hearing to him, a third party Sri Kemparaju has been substituted to undertake the said work of cleaning of Ward No. 120-B. 4. Learned Counsel for the respondents 1 to 3-Mr. The learned Counsel for the petitioner urged that the substitution of the present petitioner has been done for extraneous reasons and without affording an opportunity of hearing to him, a third party Sri Kemparaju has been substituted to undertake the said work of cleaning of Ward No. 120-B. 4. Learned Counsel for the respondents 1 to 3-Mr. Sreenidhi however opposed the submissions made by the learned Counsel for the petitioner and urged that there is no vested right of the petitioner to continue with the said work for indefinite period as no such contract of a fixed period has been executed in his favour and on the basis of the local complaints against him conveyed through the elected person - Corporator, notices were issued to the petitioner by the Competent Authorities of the respondent-BBMP to which no satisfactory reply was given by the petitioner and on account of his inability to perform the said cleaning work properly, the respondent-BBMP was at liberty and bound to give such work of cleaning of Ward No. 120-B to some third party. He submitted that there were no mala-fides against the petitioner while removing and substituting him with another person to provide manpower of 10 municipal workers to undertake the work of cleaning of the said Ward. 5. This Court recently, dealing with a similar controversy in the case of S. Gautam Raj v. Bruhatd Bengaluru Mahanagara Palike and Others, in W.P. No. 23967 of 2016 connected with Writ Petition No. 21491 of 2016 decided on 30-5-2016, held as under: "'Work or Perish' is the bedrock of good governance. In our democratic set up, those who do not work and deliver are to perish, be it Governments or elected body heads or even the contractors engaged by public bodies to deliver public service. 6. 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. 7. 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 7-4-2016 issued in favour of another person one Mr. 7. 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 7-4-2016 issued in favour of another person one Mr. N. Venkatesh who has sought impleadment in W.P. No. 23967 of 2016 listed today before the Court. The previously filed W.P. No. 21491 of 2016 is not on Board today, but since the arguments in the case listed before this Court were finally heard for both the connected 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. 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 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. 14. 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. 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." 8. This Court has clearly held the view that in the absence of any vested right with the petitioner undertaking this kind of work under a particular work order or a contract, cannot claim any vested right to undertake such work to be paid by the respondent-BBMP for an indefinite period and therefore compliance with the principles of natural justice requiring the respondents to give an opportunity of hearing to the petitioner is not required to be observed in such case and such contractual matters can be agitated only before the Competent Civil Courts and the person who alleges the breach of contract on the part of the second party or BBMP like in the present case, the petitioner can claim damages for such breach of contract, if any. This Court had also observed that a complaint in such case filed by an elected representative, the local Member of Legislative Assembly in that case, was not necessarily required to be viewed as an extraneous consideration for substitution of the contract in such cases, but on the other hand it was the duty and responsibility of such elected representative to bring such facts of the contracts in performing their duty for undertaking the work of cleaning of their respective areas to the notice of the concerned authorities of the respondent-BBMP, who are expected to take appropriate action against the ; erring or non-performing contractors. 9. Ultimately it is for the benefit of the public at large, since the right of health is embedded in the right of life guaranteed under Article 21 of the Constitution of India that such entrustment of the work on contractual basis has to be viewed by the Courts of law. Therefore those who do not perform their job satisfactorily and such satisfaction to be recorded by the Competent Authorities of the Corporations, upon a subjective satisfaction arrived at on the basis of relevant material, the Court has to necessarily give a leverage or latitude to the authorities of the respondent-Corporation to decide in the best interest of public as to who can efficiently undertake the cleaning work on contractual basis. Therefore the complaint of the petitioner in the present case also, about breach of principles of natural justice, does not impress this Court so as to grant him the relief of extension of the contract, particularly when the third party already stands awarded such work order by impugned order Annexure-N, dated 27-4-2016. 10. Even while saying so as above and in not giving any direction against the respondent-BBMP as such, for giving the said work to the present petitioner, for the satisfaction of the petitioner and also of this Court, so that the authorities of the respondent-BBMP are also held accountable in this aspect as a case illustrative and limited to the facts of this case, this Court directs that in pursuance of the notices already given to the petitioner in the present case, the petitioner will be at liberty to file a detailed representation making out his case for continuation of the work order in his favour with the relevant evidence which he may like to produce before the respondent-Superintendent Engineer (West), BBMP, Bangalore. It is [expected of the said respondent-authority to give an opportunity of hearing to the said petitioner and then pass appropriate speaking order in this regard even though ex post facto. 11. In the said process of hearing the petitioner, the said authority will also be at liberty to not only provide opportunity of hearing to the newly appointed contractor Mr. S. Kemparaju, but also the elected Corporator Mr. D. Pramod and after hearing all the concerned parties, the said authority will pass appropriate orders in this regard. 12. Let a copy of such order be placed on the record of this Court in the present case for perusal of the Court within a period of six weeks from today.