Amanat Ali vs Ut Of J&K And Ors
2022 Latest Caselaw 862 j&K

     HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
                      AT JAMMU

                                             Reserved on :      21.05.2022
                                             Pronounced on      27.05.2022

                                             WP(C) No. 35/2022(O&M)

Amanat Ali                                      .....Appellant(s)/Petitioner(s)


                     Through: Mr. Rohan Nanda, Advocate
               vs
UT of J&K and Ors.                                        ..... Respondent(s)
                     Through: Mr. KDS Kotwal, Dy.AG

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

                               JUDGMENT

1. The petitioner has filed the instant petition for quashing the

communication No. FD-BDGT0D-3/17/2021-03-FINANCE

DEPARTMENT dated 22.12.2021 issued by the office of respondent

Nos. 1 to 4 and also for issuance of a direction to the respondents to

release the payment of the work executed by the petitioner.

2. The petitioner claims to have executed the following works:

(a) Construction of road along with drain, culvert and nallah from

link road Kote Purkhoo road to Mahhalla Ramdssain at village

Kalakam (by way of earth work premixing) Part-I

(b) Construction of road along with drain, culvert and nallah from

link road Kote Purkhoo road to Mahhalla Ramdssain at village

Kalakam (by way of earth work premixing) part-II.

3. It is stated that the respondent No. 2 vide communication dated

08.07.2019 conveyed the approval of execution of aforesaid works. It

was also stated that the funds for the purpose shall be provided at the

time of revised estimate 2019-2020 after completion of all codal

formalities. The respondent No. 4 vide communication dated

31.07.2019 authorised the respondent No. 5 to execute the work. The

respondent No. 5 vide communication dated 14.08.2019 authorised the

respondent No. 6 to execute the work. The respondent No. 6 further

authorised the Secretary Panchayat, Kot Upper vide two

communications each dated 05.09.2019 to take up the execution of

works through facilitators to be selected by Gram Sabha concerned,

who shall arrange the labourers at the work site. The work was

completed by the petitioner and the physical verification of the said

works was conducted on 14.03.2020 by the Additional Development

Commissioner, Jammu. After the verification was conducted, the

Additional Development Commissioner, Jammu forwarded a

communication dated 16.03.2020 to the respondent No. 4 to release the

payment as per quantity executed and authenticated by executing

agency. The respondent No. 4 requested the respondent No. 1 to

release the funds vide communication dated 16.03.2020. The

respondent No. 1 vide communication dated 08.03.2021 conveyed the

respondent No. 4 the authorization for release of funds for the work

done by the petitioner. The respondent No. 4 vide order dated

18.03.2021 accorded the sanction to the "accord of administrative

approval" and release of funds in favour of the respondent No. 5 for its

release/utilization for the works done by the petitioner. The respondent

No. 5 vide order dated 19.03.2021 accorded the sanction to the "accord

of administrative approval" and release of funds and placed the funds at

the disposal of respondent No. 6. The respondent No. 6 sought

clarification from the respondent No. 5 regarding release of funds for

the work done by the petitioner vide communication dated 22.03.2021.

4. The respondent No. 5 vide communication dated 22.03.2021 stated that

the tendering process in the Rural Development Department started

vide Government order dated 04.10.2019, whereas the work has been

executed by the petitioner before the tender process was adopted. The

respondent No. 5 vide communication dated 22.03.2021 also sought

clarification from respondent No. 4 in the matter and also intimated the

respondent No. 4 that these works were authorised much before the

tendering process adopted by Rural Development Department and has

requested for exemption of e-tendering, so that the past liabilities of the

executed works are cleared during the current financial year. The

respondent No. 4 vide communication dated 24.03.2021 to respondent

No. 1 stated that the office of respondent No. 1 vide communication

dated 08.03.2021 has authorised for clearing the work done liability

with the conditions among others that the work should have been

initiated with due e-tendering process and AAA/TS be in placed and it

was also intimated that the works were authorised prior to issuance of

order dated 04.10.2019.

5. The respondent No. 1 vide communication dated 22.12.2021 asked the

respondent No. 4 to furnish details whether the works done by the

petitioner were undertaken after following due tendering process. The

petitioner has impugned the said order on the ground that works were

executed by the petitioner much before implementation of the tendering

system in the Rural Development Department and the respondent No. 1

has issued the impugned communication despite the fact that the

respondent No. 4 vide its communication dated 24.03.2021 has

categorically requested the respondent No. 1 to grant one time

exemption for the condition of e-tendering because when the petitioner

started the executing works, the e-tendering system was not

implemented in the Rural Development Department.

6. Response stands filed by the respondents, in which it is stated that the

Finance Department vide No. DP-7/Jammu 2018-19/PS-901 dated

08.07.2021 and DP-7/Jammu 2018/PS-2011 dated 02.08.2019

authorised the four works to the District Development Commissioner,

Jammu for its execution. The funds for the said works were released to

the District Development Commissioner, Jammu with the condition to

follow e-tendering procedure. In response, the Block Development

Officer approached the Assistant Commissioner Development, Jammu

and apprised that at the time these works were executed, there was no

tendering system in the department. It was also intimated that

tendering system was introduced vide G. O. No. 267 RD&PR of 2019

dated 04.10.2019. The District Development Commissioner, Jammu

approached the Finance Department and apprised the same facts to the

Finance Department. At last, the Finance Department had asked District

Development Commissioner, Jammu to furnish details whether the

works were taken after following due tendering process, to which the

District Development Commissioner, Jammu replied that the works in

question were taken up as per GFR and due codal formalities, such as

AAA and TS were fulfilled except tendering for execution of works.

These works were authorised for execution in the month of July and

August, 2019 as per the authorization conveyed by the Finance

Department vide orders dated 08.07.2021 and 02.08.2019, whereas the

tendering process was adopted by the Development Department from

the month of October, 2019 pursuant to order dated 01.10.2019. It has

also been stated that the physical verification of these work was also

conducted and verification report was also submitted to the Finance

Department.

7. Mr. Rohan Nanda, learned counsel for the petitioner vehemently argued

that at the time when the works were authorised for execution, the e-

tendering process was not in operation and it was in the month of

October 2019 when a direction was issued for tendering of the works.

8. On the other hand, Mr. K. D.S. Kotwal, learned Dy. AG argued that the

present petition is not maintainable, as such, the same deserves to be

dismissed.

9. Heard learned counsel for the parties and perused the record.

10. From the record, it is evident that the petitioner was allotted the above

mentioned works. He has successfully completed the same. The

respondents have admitted in their response that the physical

verification of these works has already been undertaken. The only plea,

on the basis of which the payment is being denied, is that the tenders

were not floated for the said works. It is evident that the works were

authorised prior to the order dated 04.10.2019 when the Rural

Development Department and Panchayati Raj ordered that all the

development works with an estimated cost of Rs. 3.00 lacs shall be put

to tenders before execution. So far as instant case is concerned, it is

evident from the communication dated 24.03.2021 addressed by the

District Development Commissioner i.e. respondent No. 4 to the

respondent No. 1 that the works were authorised for execution much

before the tendering process was adopted by the Rural Development

Department.

11. In view of the stand taken by the respondent No. 4, the respondent No.

1 should not have issued the impugned communication dated

22.12.2021. The impugned communication dated 22.12.2021 has been

issued oblivious to the communication dated 24.03.2021 issued by the

respondent No. 4 i.e. District Development Commissioner, Jammu, as

such, the same is not sustainable in the eyes of law being arbitrary in

nature.

12. Viewed thus, the petition succeeds and the communication No. FD-

BDGT0D-3/17/2021-03-FINANCE DEPARTMENT dated 22.12.2021

issued by Accounts Officer (Bgt.) Finance Department, is hereby

quashed. The respondents shall make the admitted payment 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 27.05.2022 Karam Chand Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No