Cm (5837/2021) vs Through: Mr. Irfan Andleeb
2022 Latest Caselaw 543 j&K/2

                                                                  NISSAR A BHAT
                                                                  2022.05.11 12:29
                                                            Regular Cause list
                                                              Serial No. 7


 HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                AT SRINAGAR

                                                        WP (C) 1753/2021
                                                         CM (5837/2021)
M/S Farsang Technoid
                                                 ... Petitioner/Appellant(s)
Through: Mr. M. A. Beigh, Advocate

                        V/s
Commissioner Secretary and others

Through: Mr. Irfan Andleeb, AAG
                                                          ... Respondent(s)


CORAM: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

                               ORDER

09-05-2022

01. The Executive Engineer, PHE Division, Bijbehara, issued an

E-NIT under No. 24/PHED/Bijbehara of 2019-20 dated 3rd

December, 2019, inviting bids from different Contractors/Executing

Agencies for execution of work of "construction of chain link

fencing around structures for water supply scheme Shoul Sarsona".

The petitioner also participated in the process and was allotted the

said work vide allotment letter No. PHB/7460-62 dated 1st January,

2020. A formal agreement with regard to the execution of subject

work was executed between the petitioner and the answering

respondents. It is not disputed by the respondents that the petitioner

has executed the work allotted to him to the satisfaction of the

respondents.

02. On successful completion of the work, the petitioner

submitted his bills for payment to the office of Executive

Engineer, PHE Division, Bijbehara. The bills for an amount of

Rs. 36,23,300/- were passed after proper check at the Divisional

Office of the respondents. It is submitted that the Commissioner

Secretary to the Government, Jal Shakti Department vide his

order no. 49 JK (JSD) of 2021 dated 25.2.2021 has directed the

respondents to constitute a committee for physical verification of

all the schemes/works executed under languishing projects where

cost escalation is beyond 15% of tender cost. Accordingly, the

committee was constituted. It is submitted that since the work

allotted to the petitioner comes under the languishing projects, as

such there is requirement of a physical verification report to be

issued by the constituted committee. The said committee after

spot verification has submitted its report/observations to the

government. It is submitted that the response of the government

regarding the release of the payment of the petitioner is still

awaited and as and when the government will issue orders for

release of the payment, the same will be released in accordance

with rules to the petitioner.

03. Having heard learned counsel for the parties and perused the

material on record, I am of the considered opinion that in view of the

stand of the respondents taken in their reply, this petition is liable to

be allowed. There is no dispute that the petitioner has executed the

allotted work to the satisfaction of the respondents; even the bills for

payment submitted by the petitioner are not disputed. However, the

payment has been withheld on the ground that pursuant to the

directions of the Government in Jal Shakti Department, amongst

others, the work executed by the petitioner was directed to be verified

by a committee constituted by the Government. It has also come on

record that the said committee has since submitted its report and has

verified the work executed by the petitioner. If that being the position,

there is no reason or justification with the respondents to deny the

legitimate payment due to the petitioner on account of execution of

work allotted to him.

04. In view of the admission with regard to the execution of the

work and the entitlement of the petitioner for the payment on account

of such execution, there remains nothing in this writ petition for

further adjudication. This Court has time and again reiterated that

once work is executed by a Contractor or Executing Agency to

the satisfaction of the respondents and the bills submitted by

such Contractors or Executing Agencies are passed, the payment

cannot be denied on account of paucity of funds. It is for the

respondents to arrange the funds and then get the works executed.

If they allot works to the Contractors and get them executed

without their being any funds for execution, they do so only at

their peril.

05. For the foregoing reasons, this writ petition is allowed and

respondents are directed to release the admitted payment of the

petitioner for the subject work executed by him along with interest @

6% within a period of two months from the date a copy of this

judgment along with complete paper book is served upon them. It is

made clear that in case the liability towards the petitioner is not

discharged within a period of two months, the amount shall become

payable with interest @ 9% to be reckoned after completion of two

months.

06. Disposed of along with connected CM(s) in the aforesaid terms.

(SANJEEV KUMAR) JUDGE Srinagar 09-05-2022 N Ahmad