Abdul Salam Ganaie vs U.T Of J&K And Others
2023 Latest Caselaw 620 j&K/2

       HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT SRINAGAR

                                                       WP(C) No. 940/2021
                                                        CM No. 3012/2021


                                           Reserved on :          07.04.2023
                                         Pronounced on:           19.05.2023


Abdul Salam Ganaie                                .... Petitioner/Appellant(s)

                        Through:-   Mr. Rizwan Ul Zaman, Advocate.

                  V/s

U.T of J&K and others                                     .....Respondent(s)

                        Through:-   Mr. Faheem Nisar Shah, G.A vice
                                    Mr. Ilyas Nazir Laway, G.A.
CORAM: HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE
                              JUDGMENT

01. The petitioner is a registered A-Class Contractor, he after

participating in the tendering process of works for restoration of

damages caused by the flash floods of September 2014 to the road from

Asnoor to Raiwattan (Package No. JK01-81) vide order No.

EE/PMGSY/KUL/2288 dated 30.10.2014 and restoration of damages

caused by the said flash floods to the road from H.M. Guri to C.S. Rather

(Package No. JK01-196) vide order No. EE/PMGSY/KUL/2234-35

dated 25.10.2014. Both these allotment of works were for an amount of

Rs. 14,90,000/-. The respondent No. 3, after the physical verification of

the works executed by the petitioner, prepared a work done estimate for

an amount of Rs. 14,90,000/-.

02. These works were executed by the petitioner as per the terms and

conditions of the allotment order within the prescribed time period. The

petitioner after completion of entire process of verification submitted his

bills for payment of Rs. 14,90,000/-. The execution of works and the

amount of Rs. 14,90,000/- due to the petitioner is not disputed. The

contention of the petitioner is that, despite the respondents admitting

their liability, the same has not been paid to the petitioner till date

despite repeated representations.

03. The grievance of the petitioner is that after successful execution of

all the works allotted to him to the satisfaction of the respondents but the

respondents, despite admitting the same have not released the payment

due to him till date. The petitioner, thus, seeks a direction to the

respondents to release the admitted amount of Rs. 14,90,000/- due, along

with interest from the date of completion of execution of the works.

04. In their objections, the respondents have admitted that the works of

restoration of the road from Asnoor to Raiwattan and the road from H.M.

Guri to C.S. Rather were allotted to the petitioner vide order Nos.

EE/PMGSY/KUL/2288 dated 30.10.2014 and EE/PMGSY/KUL/2234-35

dated 25.10.2014. The physical verification of the works was also

undertaken by a committee constituted for the same, and the copy of the

same has also been placed on record.

05. It is further submitted by the respondents that they had demanded

funds from the District Development Commissioner, Kulgam, vide letter

Nos. E/PMGSY/DB/8750/52 dated 14.11.2018 and

PW(R&B)/Plan/FDR-517/2014 dated 01.08.2018, to enable them to

settle the pending claims of the petitioner. However, no funds have been

released till date under the proper head, i.e., SDRF. They, however,

submit that as and when the funds are available, the same will be

released in favour of the petitioner.

06. Admittedly, the petitioner executed the works allotted to him and

physical verification of the same was also undertaken by the Committee,

but despite admitting their liability, the payment has not been released in

favour of the petitioner only on the ground, that funds are not available

with them. This cannot be a ground to withhold the payment to the

petitioner for the works executed by him.

07. The petitioner, having successfully completed the works and also

also not been guilty of breach of contract, he cannot be denied payment

only on the ground that the funds are not available. The respondents,

having tendered and allotted works subsequently, cannot deny the

payment only on the ground of the non-availability of funds, therefore,

resiling from their obligation.

08. In "M/s Surya Construction Vs. State of U.P. in Civil Appeal

No. 2610/2010 dated 02.05.2010" it was held that it is well settled, even

in the realm of contract, this Court can interfere under Article 226 of the

Constitution of India as held in "ABL International Ltd. and Another

vs. Export Credit Guarantee Corporation of India Ltd. and Others

(2004 (3) SCC 553)". The State while entering into contract or

agreement with private individuals has to act in just, fair and reasonable

manner. The contractual obligations of the State coexist with the

constitutional obligations. The works being completed long back and

there being no dispute on amount and payment being admitted by the

respondents, same cannot be denied when the work stands executed.

09. In this case, the liability is admitted by the respondents, as such,

they are under obligation to pay the amount due to the petitioner for

execution of the works. The respondents, after allotment and execution

of work, cannot shirk away from payment of admitted liability on the

ground that no funds are available with them.

10. The contractor participates in tendering process and executes work

with Government on the assurance that after completion of the same, he

would be paid the amount due to him without any delay and cannot be

denied payment on the ground that funds are not available. The

petitioner is, thus, held entitled to payment of amount due to him for

execution of works.

11. In view of the aforesaid reasons, this petition is allowed. The

respondents are directed to release a payment of Rs. 14,90,000/- in

favour of the petitioner on account of works executed by him within a

period of six weeks from the date, a copy of this order is made available

and if the payment is not made within the aforesaid period, the petitioner

will also be held entitled to an interest @ 6% from the date the payment

was due till it is realized.

12. Disposed of accordingly.

(Sindhu Sharma) Judge

Srinagar:

19.05.2023
Michal Sharma


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