Amanullah Khan vs Union Territory Of J&K And Others
2022 Latest Caselaw 811 j&K

     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT JAMMU

                                                Reserved on : 13.05.2022
                                                Pronounced on: 21.05.2022

                                                         WP (C) No. 654/2021

Amanullah Khan                                  .....Appellant(s)/Petitioner(s)


                       Through: Mr. N. A. Gattoo, Advocate.
                  vs
Union Territory of J&K and others                            ..... Respondent(s)


                       Through: Mr. Ravinder Gupta, AAG.

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

                               JUDGEMENT

1. The petitioner seeks issuance of directions to the respondents to release

sum of Rs. 7,47,377/- along with the interest till date, on account of the

following works executed by the petitioner on the instructions of the

respondent No.3:

          "(i)     Bhargan to Roat Road Km 5th to 6th,
           (ii)    Bhargan to Roat Road Km 7th to 8th,
         (iii)     Bhargan to Roat Road Km 1st to 2nd,
         (iv)      Doda to Malwana Jagir,
         (v)       Malwana Jagir to Abli Masri,
         (vi)      Dhar to Dashnan Road, &
         (vii)     Bharath Road to Aul"

2. The petitioner claims to have submitted the copy of bills and work done

claims to the respondent No. 3. As the payment was not made to the

petitioner, the petitioner served a legal notice dated 08.01.2021 upon the

respondents calling upon the respondents to make a payment of Rs.

7,47,377/- and in response to the same, the respondent No. 4 admitted the

claims of the petitioner and stated that the payment of work done claims

and funds are still awaited for clearance of pending liabilities. The

respondent No. 4 also admitted the execution of the work by the

petitioner. On these facts, the petitioner has filed the present writ petition.

3. Response stands filed by the respondents, in which the respondents have

admitted execution of the work done by the petitioner in Para 5 of the

objections, however, it is stated that the same was executed without there

being any work order, technical sanction and administrative approval and

also without availability of funds. It was also stated that no tender was

floated and the petitioner had executed the aforesaid works having full

knowledge of the non-availability of the funds. Therefore, the present

petition deserves to be dismissed. It is also stated that the petitioner had a

remedy of filing a suit and there is delay in filing the present writ petition.

4. Mr. N. A. Gattoo, learned counsel for the petitioner submits that as

respondents have admitted the liability in the reply to the legal notice and

further respondents have admitted that the petitioner has executed the

works, so the respondents are under legal obligation to discharge the

liability. He placed reliance upon the decision of the Co-ordinate Bench of

this Court in "Abdul Hafiz Wani vs. State of J&K and others" decided

on 02.03.2022.

5. Per Contra, Mr. Ravinder Gupta, learned counsel for the respondents

argued that the work was executed without administrative approval,

technical sanction and without there being any tender floated for the same.

He further argued that the claim is time barred as the petitioner is guilty of

delay and latches in filing the writ petition. He further laid stress that the

petitioner should have filed a civil suit rather than filing a writ petition.

6. Heard and perused the record.

7. In the reply dated 01.02.2021 submitted by the respondent No. 4 in

response to the legal notice of the petitioner, the respondent No. 4 has

admitted execution of the work done by the petitioner and in fact has

admitted the liability of Rs. 7,47,377/-. Further, it has been stated that the

funds are still awaited for clearance of pending liabilities. The

respondents, in their response have nowhere stated that the said reply

submitted by the respondent No. 4 is either forged or fake document and

in fact no specific reply has been furnished by the respondents in their

response to the legal notice dated 01.02.2021, wherein the liability has

been admitted by the respondent No. 4. But at the same time the

respondents have admitted the execution of works by the petitioner

though without approval and technical sanction.

8. The contention of the respondents is that the work has been executed

without administrative approval and without there being any tender

floated for the said work, as such, the petitioner is not entitled to the

amount claimed by him. Once the respondents have admitted execution of

the work and also admitted their liability through their communication

dated 01.02.2021, the respondents cannot take refuge under the said plea,

as such, this plea is rejected. In fact identical view has been taken by co-

ordinate bench of this Court in "Abdul Hafiz Wani Vs. State of J&K

and others" bearing OWP No. 631/2012 decided on 02.03.2022.

9. The other contention raised by Mr. Ravinder Gupta is that the claim of the

petitioner is time barred. This contention too is misconceived because

once the execution of work by the petitioner and the claim of the

petitioner has been admitted by the respondents vide communication

dated 01.02.2021, the petition would not be hit by delay and latches. The

Coordinate Bench of this Court in "Abdul Hafiz Wani vs. State of J&K

and others" bearing OWP No. 631/2012 decided on 02.03.2022, has also

observed that once the liability has been acknowledged, then the petition

would not be hit by delay and latches.

10. The last contention raised by the respondents is that the petitioner should

have filed the civil suit instead of filing the writ petition. The issue is no

more res integra that even in contractual matter the writ petition is

maintainable for monetary claims where the liability is admitted. Reliance

is placed upon decision of the Hon‟ble Apex Court in Surya

Constructions vs. State of Uttar Pradesh and ors, 2019 Legal Eagle

(SC) 1422, in which the Apex Court 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)]."

11. In view of the above, the present petition is allowed. The respondents are

directed to make a payment of Rs. 7,47,377/- to the petitioner within a

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

the respondents.

(RAJNESH OSWAL) JUDGE

Jammu 21.05.2022 Sahil Padha

Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No