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PETITIONER: THE COMMISSIONER, CORPORATION OF THE CITY OF BANGALORE, BANG

       Vs.

RESPONDENT: K.N. VASUDEVA MURTHY (DEAD) THROUGH L.RS. & ORS.

DATE OF JUDGMENT:       28/07/1998

BENCH: K. VENKATASWAMI, A.P. MISRA

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Special leave granted.      These two  appeals are  filed against the two orders of the Division Bench of the Karnataka High Court dated 23.8.95 in W.A.  No.2825/95  and  dated  10.11.95  in  I.A.  VI  for recalling the order dated 23.8.95.      We do  not consider  it necessary to give full facts of the case  relating to  these appeals  in view  of the  order proposed to be passed. Brief facts are given below:-      The husband  of the  first  respondent  and  father  of respondents Nos.2 to 9 (hereinafter called the "Contractor") was  entrusted   with  the  execution  of  a  work  for  the construction  of   storm  water   drain  by  the  appellant- Corporation. It  is common ground that the Contractor failed to complete  the work  within  the  stipulated  time,  which necessitated the  Corporation to entrust the balance work to a new Contractor, namely, M/s J.K. Construction Company, who completed the work. The Contractor claimed that he was to be paid some  amount by  the appellant-Corporation for the work executed by  him. The Corporation, however, was not prepared to accept  the liability  which necessitated the appointment of an  Expert Committee.  The Expert Committee seems to have recommended that the Corporation has to pay the contractor a sum  of   Rs.39,53,096.50  with  interest  from  1.10.81  to 10.8.94. It  appears that  the Corporation has paid the said sum of  Rs.39,53,096.50 but  did not  pay  the  interest  as recommended by the Expert Committee.      Aggrieved  by   the  non-payment   of   interest,   the Contractor has  moved the Karnataka High Court under Article 226 of  the Constitution  for a direction to the Corporation for payment  of the  interest as  noticed  above.  When  the matter came  up before  a learned  Single Judge, the learned counsel appearing  for the Corporation said to have made the following statement:-      "Smt.   B.L.    Hemavati,   learned      counsel  appearing  for  respondent      No. 2  would not  dispute that  the      second respondent  is liable to pay      interest  as   recommended  by  the      Expert Committee  and the  approval

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    is being  sought from  the Standing      Committee of the Works and Taxation      and Finance."      It may  be noticed  at this stage that the grievance of the appellant-Corporation  is that before the learned Single Judge the  Corporation was not given sufficient time to file a Counter/Reply  to the  claim of the Contractor. Be that as it may. The learned Single Judge has directed the appellant- Corporation to  pay the  interest on  Rs.39,53,096.50  paise from 1.10.81  to 10.3.94  holding that  since Government had accepted the  Report of  the Export  Committee there  was no need to  seek the  approval of the Standing Committee of the Works and Taxation and Finance.      The Corporation,  feeling aggrieved by the order of the learned Single  Judge, preferred  a  Writ  Appeal  (FR)  No. 1056/95  before   the  Division  Bench.  Unfortunately,  the learned counsel  for the  Corporation could  not be  present when the  matter was  taken up by the Division Bench and the Division Bench, however, disposed of the appeal on 23.8.1995 holding as follows:-      "In fact  the whole  case proceeded      on the basis of the concession made      before the  Court  by  the  learned      counsel  for   the  appellant.  The      learned  counsel  did  not  dispute      that  they   are  liable   to   pay      interest  as   recommended  by  the      Expert Committee appointed by them.      All that was needed was approval of      the Standing  Committee. The  Court      noticed,  that   seeking   of   the      approval of  Standing Committee  in      such a matter is wholly unnecessary      because the  Expert  Committee  had      already given  its  recommendation.      In the circumstances, without going      into the  question  of  delay  this      appeal is rejected."      The Corporation  moved the Division bench for recalling the order  dated 23.8.1995  passed in  Writ  Appeal  on  the ground that the counsel for the appellant was not heard. The application for  recalling the  order  was  disposed  of  on 10.11.1995 by the Division Bench by observing as follows:-      "Even   after    hearing   Sri   P.      Vishwanatha  Shetty,   we  find  no      grounds  to  change  the  order  in      Appeal or  recall the order made on      23.8.95."      Aggrieved by  the above  two orders,  these appeals are now filed by special leave.      Mr. Oavali,  learned senior  counsel appearing  for the appellant-Corporation,  while   arguing   on   merits   also submitted  that   the  Division   Bench  was  not  right  in proceeding  that   there   was   an   unconditional/absolute concession before  the learned  Single Judge,  which enabled the Court  to allow  the Writ  Petition.  According  to  the learned senior  counsel, there  was no  concession  and  the learned counsel  before  the  learned  Single  Judge,  as  a statement of  fact, has  stated  that  the  Corporation  was liable to  pay as  recommended by  the Expert Committee, but after the  approval by  the Taxation Committee. We must bear in mind,  for  what  it  is  worth,  the  grievance  of  the Corporation that it was not given an opportunity to file its return before the learned Single Judge.      Mr. Naik,  learned senior  counsel  appearing  for  the

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respondents, while  answering the  submissions made  by  the learned senior  counsel  for  the  appellant-Corporation  on merits, also submitted that the Division Bench was perfectly in order  in construing the statement of the learned counsel appearing for  the Corporation  before  the  learned  Single Judge as  a concession  and further the Court was also right in holding  that the  approval of the Taxation Committee was not required on the facts of the case.      After considering  the rival submissions and bearing in mind the  huge public  amount involved in this case and also the circumstances  attending to the disposal of the  matters before the  learned Single  Judge and the Division Bench, we are of  the view  that the  Division should  considered  the question whether  the  statement  made  before  the  learned Single Judge  (extracted  supra)  by  the  counsel  for  the Corporation amounted  to an  unqualified    concession  and, therefore, no  further question  arose. Even  assuming  that there was  a qualified concession, whether the circumstances brought out  in  the  memorandum  of  grounds  required  any consideration especially when the Division Bench disposed of the writ  appeal on merits in the absence of counsel for the appellant-Corporation. We  set aside  the impugned orders of the Division  Bench and remand the matter to the High Court. We deliberately  refrained from  considering the  merits  at this stage  for obvious reasons. The High Court will restore on its  file the  Writ Appeal  (FR) No.  10526/95 (W.A.  No. 2825/95) and dispose of the same in accordance with law.      The appeals  are disposed  of accordingly with no order as to costs.