Tejeinder Singh vs Ut Of J&K And Ors
2022 Latest Caselaw 779 j&K

     HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
                      AT JAMMU

                                             Reserved on :      05.05.2022
                                             Pronounced on      13.05.2022

                                           WP(C) No. 1543/2021(O&M)

Tejeinder Singh                                 .....Appellant(s)/Petitioner(s)


                       Through: Mr. M. K. Bhardwaj, Sr. Advocate with
                                Mr. Gagan Kohli, Advocate
                  vs
UT of J&K and Ors.                                        ..... Respondent(s)
                       Through: Mr. Ravinder Gupta, AAG
                                Mr. Amit Gupta, AAG

Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

                                  ORDER

1. The grievance raised by the petitioner is with regard to the release of

payment of Rs. 36.70 lacs for the work executed by him relating to the

temporary diversion of Kunjwani-Bishnah road and temporary

restoration of link road from Ashram at Bandurakh to village Dharp

under the State Disaster Relief Fund (SDRF). In support of his case, the

petitioner has placed on record various communications including the

communication dated 27.10.2020.

2. Response stands filed by the respondents, in which besides raising the

plea with regard to the limitation, the plea of alternate remedy of filing

the suit, has also been raised. It is also stated that the work has been

executed without tender and without administrative approval.

Simultaneously, in the response, it has been stated that as per AEE

concerned, the work has been executed by the contractor under the

SDRF being of emergent nature and no allotment has been made in

favour of the said contractor. It is also stated that the liabilities of the

various works executed under the SDRF in the year 2014 have been

submitted to the higher authorities vide communications dated

01.10.2014 and 20.12.2017 for demand of funds and payments.

3. Mr. M. K. Bhardwaj, learned senior counsel for the petitioner

vehemently argued that there is admission on the part of the

respondents in view of the communication dated 10.03.2017 with

regard to the claim of the petitioner and the respondents now cannot

raise the issue of limitation. He further submitted that once there is

admission by the respondents with regard to execution of work by the

petitioner and liability thereof, the amount payable to the petitioner

cannot be denied.

4. On the other hand, Mr. Ravinder Gupta, learned AAG submits that the

writ petition is time barred as the same has been filed after seven years

of execution of the work and further that the petitioner has got remedy

of filing the civil suit. It is further submitted that no tender was floated

for execution of the work, as such the petitioner is not entitled to any

relief by this Court.

5. Heard and perused the record.

6. From the perusal of the communication dated 10.03.2017 addressed by

the respondent No. 5 to respondent No. 4, it is revealed that the details

of the works executed by the petitioner were forwarded to respondent

No. 4. Further from the communication dated 27.10.2020, it is evident

that the claim of the petitioner with regard to the work done by him

amounting to Rs. 36.70 lacs has not been cleared because of the reason

that the funds were not received by the respondent No. 2. Further from

the perusal of the letter dated 27.10.2020, it is also revealed that the

work claim of the petitioner to the extent of Rs. 36.70 lacs is pending

with the respondents and funds have been demanded under the flood

restoration of 2014 under SDRF, but till date no funds have been

received by respondent No. 2. The respondents in their reply have not

denied issuance of the said communication by the respondent No. 2.

Thus, it is evident that there is admission on the part of the respondents

with regard to the payment of Rs. 36.70 lacs, though the respondents

have taken contradictory pleas by stating that the work was not allotted

to the petitioner and simultaneously, stating that as per AEE concerned,

the work has been executed by the contractor under the SDRF being of

emergent nature and no allotment has been made in favour of the said

contractor. It is also stated that the liabilities of the works executed

under SDRF in the year 2014 have been submitted to higher authorities

for demand of funds and payments. The respondents have nowhere

disputed the issuance of the communication dated 27.10.2020 by

respondent No. 2, pursuant to the complaint lodged by the petitioner

with the Grievance Cell.

7. The contention of the respondents that the claim of the petitioner is

time barred and the petitioner has a remedy of filing the suit, is

misconceived in view of the fact that there is admission on part of the

respondents that the petitioner has executed the work. The respondents

have also admitted the liability with regard to the payment of Rs. 36.70

lacs to the petitioner vide communication dated 27.10.2020. Rather the

respondent No. 2 has stated that the funds were demanded but the same

have not been received and as and when the funds are received, the

grievance of the petitioner shall be redressed accordingly.

8. The last contention of the respondents that the codal formalities such as

administrative approval etc. have not been complied with, is also not

sustainable in view of the judgment of the Division Bench of this Court

in Union Territory of J&K and others vs. Sanjeev Kumar, 2021

Legal Eagle (J&K) 110, wherein similar objection with regard to the

codal formalities was raised, but was rejected by the Division Bench on

the ground of admission of the liabilities by the appellant therein. The

relevant portion of the said judgment is reproduced as under:

"10. The petitioner who was allotted the contract by the Housing Board cannot be expected to first verify as to whether the contract that has been allotted to him was being executed within the territorial jurisdiction of the Housing Board or not, nor was he expected to refuse the execution of the work simply because the subject matter of the work was not put to open tendering system. Needless to say that the contractor did execute the works upon being allotted to him for which some amount is certainly due to him.

11. We cannot overlook the various communications issued by the J&K Housing Board annexed with the writ Court record as also the LPA, wherein certain directions were issued to release of pending bills in favour of the petitioner/respondent herein for the works executed.

12. While the entire emphasis of Mr. Nanda, learned Sr. AAG appearing on behalf of the Union Territory was on the manner in which the works stood allotted yet we cannot lose sight of the fact that the works executed did result in creating infrastructure in the shape of community halls, multipurpose halls, lanes, drains etc in the city for the benefit of the common man."

9. The Supreme Court in Surya Constructions vs. State of Uttar

Pradesh and ors, 2019 Legal Eagle (SC) 1422, has held as under:

"3. It is clear, therefore, from the aforesaid order dated 22.03.2014 that there is no dispute as to the amount that has to be paid to the appellant. Despite this, when the appellant knocked at the doors of the High Court in a writ petition being Writ Civil No. 25216/2014, the impugned judgment dated 02.05.2014 dismissed the writ petition stating that disputed questions of fact arise and that the amount due arises out of a contract. We are afraid the High Court was wholly incorrect inasmuch as there was no disputed question of fact. On the contrary, the amount payable to the appellant is wholly undisputed. Equally, it is well settled that where the State behaves arbitrarily, even in the realm of contract, the High Court could interfere under Article 226 of the Constitution of India [„ABL International Ltd. and Another v. Export Credit Guarantee Corporation of India Ltd. and Others‟ (2004 (3) SCC 553)]."

10. In view of the above, this Court is of the considered opinion that as the

liability has been admitted by the respondents, as such, they are under

obligation to discharge the same.

11. Viewed thus, the present writ petition is allowed. The petitioner is held

entitled to Rs. 36.70 lacs from the respondents. The respondents shall

make the payment of the aforesaid amount to the petitioner within a

period of three months from the date a copy of this order is made

available to the respondents, failing which the respondents shall pay

interest @ 6% per annum from the date of filing of this petition.

(Rajnesh Oswal) Judge JAMMU 13.05.2022 Karam Chand Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No