Jammu & Kashmir High Court
Ut Of J & K vs Nishat Ahmed on 28 October, 2024
Sr. No. 18
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
LPA No. 84/2022 in
WP (C) No. 830/2021
1. UT of J & K .....Appellant(s)/Petitioner(s)
through its Commissioner/Secretary,
Public Works Department (R&B),
Civil Secretariat, Jammu.
2. The District Development Commissioner,
Kishtwar.
3. The Chief Engineer, PMGSY (JKRRDA)
J & K JKPCC Building, 4th Floor,
Panama Chowk, Jammu.
4. The Additional District Development
Commissioner, (Chairman SOP/SDRF),
Kishtwar.
5. The Superintendent Engineer (PMGSY),
Circle-Batote.
6. The Executive Engineer (PMGSY),
PWD (R&B), Kishtwar.
Through :- Mr. Ravinder Gupta, AAG
v/s
Nishat Ahmed, Age 40 years, .....Respondent(s)
S/o Mohd. Sikander,
R/o Village Hullar Lachdayaram-A,
Tehsil & District Kishtwar.
Through :- Mr. Irfaan Khan, Advocate
CORAM: HON'BLE MR. JUSTICE ATUL SREEDHARAN, JUDGE
HON'BLE MR. JUSTICE MOHD. YOUSUF WANI, JUDGE
ORDER (ORAL)
28.10.2024
(Atul Sreedharan-J)
1. The present appeal has been filed by the UT which is aggrieved by
the order dated 02.06.2022 passed by the learned Single Judge in
WP (C) No. 830/2021 titled Nishat Ahmed vs. UT of J & K &
Ors.
2. The brief facts of the case are as follows:
3. The writ petition was filed seeking a direction to the respondents
(hereinafter, to be referred to, as the 'appellants') to release the
payment amounting to Rs. 24.85 Lacs in favour of the petitioner
(hereinafter, to be referred to, as the 'respondent') for executing
the restoration works i.e. (a) Dunadi Bunjwah Road from Kewa Pul
to Kither, (b) Shalimar to Trigam and (c) K K Road Km 6 th to
Shana. These works were assigned to the respondent for execution
by the District Administration. The respondent completed the work
in the year 2016 and then again in the year 2018. The restoration
works were executed from time to time by the respondent as and
when the roads were damaged, the respondent was assigned the task
and he completed the same without any delay in order to ensure
safe transportation on those roads and the appellants assured the
respondent that the payments would be released in his favour.
Thereafter, there were various communications addressed by
different departments of the appellants seeking the release of Rs.
24.85 Lacs so that the same can be paid to the respondent.
4. As the payment was not released despite various communications
with the various departments of UT, the respondent made
representations to the appellant no. 4 for clearing his liability and in
response to the said representations, the appellant no. 4 requested
appellant no. 5 to arrange funds to the tune of Rs. 24.85 Lacs.
5. We shall refer to these communications in a greater detail in the
course of this order.
6. Notwithstanding the various communications, the amount was not
released in favour of the respondent on account of which a legal
notice was served upon the appellants by the respondent dated
10.02.2021 seeking release of the admitted liability along with
interest.
7. The case of the respondent before the learned Single Judge as
petitioner was that despite the admitted liability of Rs. 24.85 Lacs
towards him, the appellants did not release the amount in his favour
till the date of filing of the writ petition and even thereafter.
8. In paragraph No. 7 of the impugned order, the learned Single Judge
records the objections filed by the respondents (appellants herein)
in the following words "Objections on behalf of respondent nos. 1,
3, 4, 5 and 6 have been filed in which it has been stated that there is
no work order, technical sanction, administrative approval,
allotment order, work register, measurement book and geo tagged
photographs at three stages and further that due to non-availability
of funds, the claim of the petitioner is disputed one. It is also stated
that no tender was floated. It is further stated that the claim of the
petitioner is hopelessly time barred and the petitioner has a remedy
to file a civil suit."
9. Learned counsel for the appellants has argued that the impugned
order passed by the learned Single Judge is liable to be set aside on
two counts. Firstly, it is argued with great vehemence that a writ
petition could not have been filed and it ought to have been a civil
suit which had to be filed by the respondent to recover the amount
of Rs. 24.85 Lacs. The second argument put forth by the learned
counsel for the appellants is that the writ petition was hopelessly
time barred and was hit by laches as even applying the standard of
limitation for a civil suit, the writ petition was filed beyond the
period of three years from the date on which the cause of action
arose.
10. Learned counsel for the respondent has clarified that the cause of
action arose in favour of the respondent and against the appellants
for the first time in the year 2016 and thereafter, for the last time in
the year 2018 when he completed/repeated works.
11. According to learned counsel for the appellants that assuming 2018
to be the commencement of the cause of action to file a civil suit for
the alleged nonpayment of dues, the same came to an end in the
year 2021. It is pertinent to mention here that this writ petition has
been filed in the year 2021.
12. Learned counsel for the appellants has also referred to certain
judgments of the Delhi High Court in case titled M/s. Tirupati
Cement Products Vs. Delhi Jal Board & Ors. reported in 2020(4)
AD(Delhi) 302. This was a case where the Delhi High Court (which
has original jurisdiction) dismissed a civil suit on the ground of
limitation as the same had been filed beyond three years. With an
aid of this judgment and connecting it with the judgment of this
Court in case titled State of J & K & Ors. Vs. Constable Sanjeet
Kumar reported in 2012(IV) SLJ 1005 (HC), wherein at
Paragraph 10, this Court had referred and relied upon the judgment
passed by the Constitution Bench of the Supreme Court in State of
Madhya Pradesh & Anr. Vs. Bhailal Bhai reported in AIR 1964
SC 1006, wherein the Supreme Court held authoritatively that the
maximum period fixed for filing a suit before a Civil Court must
also be read as a „reasonable period' for filing the writ petition.
13. In that case, the Supreme Court held that the court may consider the
delay unreasonable, in a case to be assessed on the grounds of
laches, where the delay is unreasonable, even if it is less than
prescribed period of limitation for a civil action. The exposition of
law by the Supreme Court in this judgment passed by the
Constitution Bench is certainly not an indelible proposition of law
but must be applied in the facts and circumstances of a specific
case. The Supreme Court has held that where laches are to be
considered within a period less than the period mentioned under the
Limitation Act, the court may construe unreasonable delay based on
the conduct of the parties and the sum-totality of the circumstances
of that particular case. The contrary is also true. Where a party is
prevented from approaching the court on account of facts and
circumstances of a particular case which makes the delay
reasonable, in such a situation, laches can be condoned. Even
otherwise, there is a clear and unambiguous distinction between
limitation and laches. Limitation is a creature of statute and
therefore has to be strictly applied. Laches is a doctrine of equity
and while applying the same, what must weigh in the mind of the
court is that whether, the application of the same goes to advance
the cause of justice or put the adverse party to unreasonable
hardships.
14. Therefore, even it is assumed that the cause of action arose only
from 2016 and came to an end in the year 2019, even then, for
reasons to follow, that delay would be condonable. However, in the
specific facts and circumstances of this case, it has not been denied
that in 2016, the respondent carried out one set of work and he
again carried out works for the appellants in the year 2019. This
fact has not been denied.
15. Under the circumstances, the period of limitation would only expire
in the year 2021 which on the basis of facts also brings the petition
filed by the respondent before the learned Single Judge as not hit by
laches. As regards, the argument put forth by the learned counsel
for the appellants that civil suit was the appropriate remedy and in
the existence of the said alternate remedy, the writ petition could
not have been filed is also rejected as it is no longer res integra that
where the claim of the petitioner is undisputed by the respondents
and the same is an admitted liability, the petition is maintainable.
The other factor is that where no complicated question of fact is
involved and the liability can be verified from the pleadings itself,
the writ petition can be heard and sustained. Therefore, the second
argument is also rejected.
16. Learned counsel for the respondent on the other hand has argued
that the respondent has been made to run from pillar to post from
the year 2018. His admitted liability, despite his best efforts, has not
been paid by the appellants. In order to substantiate his argument,
he has drawn the attention of this Court to Page Nos. 48 to 53 of the
instant appeal which are letters issued by the office of the Executive
Engineer PMGSY Division Kishtwar and office of the Additional
District Development Commissioner (Chairman SOP/SDRF)
Kishtwar. Letters dated 07.03.2019, 10.10.2019 & 26.02.2020 have
been written by the office of the Executive Engineer PMGSY
Division Kishtwar to the office of the Additional District
Development Commissioner (Chairman SOP/SDRF) Kishtwar
requesting an expeditious release of Rs. 24.85 Lacs which has to be
paid to the respondent for repair of various roads which were
damaged due to torrential rains of March 2016, May 2016 and
February 2018, which were restored on "war footing" basis to allow
safe movement of vehicular traffic on these roads which was done
as per the direction of the District Administration and on account of
the pressure mounted by the general public and thereafter, requests
were made to the District Development Commissioner to release
Rs. 24.85 Lacs.
17. The three abovementioned letters once received by the office of the
District Development Commissioner, the District Development
Commissioner further addresses three letters to the Superintendent
Engineer PMGSY Circle Batote on 26.10.2019, 10.12.2019 &
14.03.2020 requesting the release of Rs. 24.85 Lacs for clearance of
the pending liability for restoration of the roads of the respondent. It
is even relevant to state that the letter dated 26.10.2019 has been
forwarded to the respondent herein/original petitioner. Likewise
also, the letters dated 10.12.2019 and 14.03.2020 also have been
marked to the respondent herein, by the office of the Additional
District Development Commissioner (Chairman SOP/SDRF)
Kishtwar. Thus, the period of limitation/laches, even if it is so, to be
applied strictly would commence from 14.03.2020 and end on
13.03.2023 and in this case, the original petition is filed on
19.04.2021, which is undisputed.
18. Under the circumstances, the arguments relating to laches is without
any substance and, therefore, rejected. This Court holds that the
respondent has been put to untold hardship from the year 2018
itself, where he has been compelled to run from pillar to post and
that, too, in vain for the release of his admitted dues.
19. The objections taken by the UT/appellants, as is reflected in
Paragraph 7 of the order passed by the learned Single Judge, is
grossly bureaucratic. While it is admitted that these works had to be
carried out on an emergency footing and also admitted that the
respondent herein/original petitioner, who has carried out these
works, it was callous indifference on the part of the UT to deprive
him of his rightful dues from 2018 till date.
20. Under the circumstances, this appeal is dismissed with exemplary
costs of Rs. 6.00 Lacs (Rs. 1.00 Lac for each year commencing
from 2018) to be paid by the appellants to the respondent, in
addition to the total admitted liability due to the respondent of Rs.
24.85 Lacs along with 6% interest imposed by the learned Single
Judge which was operative from the date of filing of the writ
petition.
21. However, it is made clear that if the dues of the respondent are not
paid to him within four weeks from the date of this order, the
respondent is entitled to file an application for contempt against the
appellants to enforce this order.
(Mohd. Yousuf Wani) (Atul Sreedharan)
Judge Judge
JAMMU
28.10.2024
Manan
Whether the order is speaking : Yes
Whether the order is reportable : No
