Jammu & Kashmir High Court - Srinagar Bench
Aijaz Ahmad Rather vs State Of Jk & Ors. on 9 July, 2018
Author: M. K. Hanjura
Bench: M. K. Hanjura
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
OWP No.213/2018
MP No.01/2018 c/w
OWP No.388/2018
Date of Order: 9th of July, 2018.
Aijaz Ahmad Rather
Vs.
State of JK & Ors.
Coram:
Hon'ble Mr Justice M. K. Hanjura, Judge.
Appearance:
For the Petitioner(s): Mr F. A. Bhat, Advocate.
For the Respondent(s): Mr Mehraj-ud-Din Bhat, Dy. AG.
i) Whether approved for reporting in Yes/No
Law Journals etc.:
ii) Whether approved for publication
in Press: Yes/No
01. By the medium of this writ petition, the petitioner has questioned the Auction Notice bearing No. NB:3599-17 dated 14th of February, 2018, issued by the respondent No.3 - Executive Officer, Municipal Committee, Ganderbal.
02. The brief facts, vital for determination of this petition, are that the petitioner, being the highest bidder, was allotted a contract for the collection of Adda/Entry fee for the financial year 2017-18 by the Municipal Committee, vide order bearing No. DULB/Estt/14709-10 dated 29th of June, 2017. However, the petitioner has pleaded that since the main source of his income was the OWP No. 213/2018 Page 1 of 6 collection of entry fee from the vehicles deployed for Amarnath Yatra and those ferrying the tourists, but due to the attack on the yatris at Anantnag, his business activities came to a grinding halt and the business community, including the petitioner, faced huge financial losses. It is further pleaded by the petitioner that in view of such losses, he approached the respondents requesting them to extend the contract, but they did not pay any attention to his request. They went ahead and issued a fresh Auction Notice dated 14th of February, 2018. Being aggrieved, the petitioner took up the matter with the Contractors Associations, who were also involved in the collection of the entry fee at various places under different Municipal Committees and who had approached the Government for compensating the losses incurred by them during the same period of turmoil. The petitioner states further that in terms of communication dated 31st of March, 2017 (Annexure-H), the respondent No.1 conveyed approval of the Administrative Department for extension of 3 months in the entry fee contract for the year 2016-17 in favour of the contractors of the different Municipal Committees of Kashmir Division, including the petitioner, but, still the respondents did not choose to consider the claim of the petitioner for the extension of the contract in his favour, constraining the petitioner to approach this Court through the medium of OWP No.42/2018. This Court, upon consideration of the matter, vide order dated 17th of January, 2018, disposed of the said writ petition with a direction to the respondents to consider the claim of the petitioner in view of order dated 31st of March, 2017. It was also directed by this Court that till such time that the consideration to the claim of the petitioner is accorded by the respondents, the present position of the petitioner shall be maintained. In pursuance of the said order, it is stated, the respondents assured the petitioner that he will be compensated for the losses suffered by him by OWP No. 213/2018 Page 2 of 6 allowing him to continue collecting entry fee, however, the respondents, to the utter dismay of the petitioner, have, in terms of the impugned Auction Notice dated 15th of February, 2018, put the contract to tenders. The petitioner has finally prayed the writ petition be allowed and the impugned Auction Notice be quashed.
03. In the objections, filed by the respondents, they have stated that in terms of the direction of this Court dated 17th of January, 2018, passed in OWP 42/2018, filed by the petitioner earlier in point of time, the claim of the petitioner has been considered, vide order bearing No. DULB/CC/947/2018/PS/265 dated 27th of February, 2018, and the same, being without merit, has been rejected. The respondents have further stated that they are otherwise duty bound to issue fresh auction notices at the appropriate time which, if not done, will cause a huge loss to the public exchequer. They have further stated that the alleged loss that the petitioner has suffered, has been assessed and the necessary measures to mitigate the same, have already been extended to him. The respondents have further contended that the relief claimed by the petitioner cannot be granted at this point of time as it will cause irreparable loss to the public exchequer which cannot be compensated. At the end, the respondents have prayed for the dismissal of the writ petition.
04. Heard and considered.
05. The petitioner, in this petition, seeks a threefold relief: one that the impugned fresh Auction Notice, issued vide No. 3599-17 dated 14th of February, 2018, be quashed; second, that the respondents be directed to pay the compensation for the losses suffered by him due to the attack on the Amarnath Yatra at Anantnag, which may either be in the shape of compensating the OWP No. 213/2018 Page 3 of 6 petitioner in terms of money or extending the contract, as allotted to him vide communication No. DULB/Estt/14709-10 dated 29th of June, 2017; and third, that the respondents be commanded to allow the petitioner to continue on extension in view of the orders passed in the earlier writ petition.
06. In case titled 'Municipal Corporation, Ujjain & Ors.' vs. 'BVG India Limited & Ors', reported in 'MANU/SC/0293/2018', the Supreme Court held that unless the Court concludes that the decision making process or the decision taken by the authority bristles with malafides, arbitrariness or perversity or that the authority has intended to favour someone, the Constitutional Court will not interfere with the decision making process or the decision of the administrative authorities, especially those relating to acceptance of a tender and award of the contract.
07. Testing the case of the petitioner from the perspective of the law laid down above, clauses 14 & 15 of the original Auction Notice dated 12th of June, 2017, require to be detailed hereinbelow and these read as under:
"14. The contractor while offering the bids shall have to visualize all conditions/ circumstances like Hartals, unfavorable circumstances, unrest etc. well in advance. Later on, no claim for relaxation in the ceiling of contract on this context shall be entertained.
15. After expiry of the contract period (i.e. 31.03.2018), the successful bidder shall handover the possession of entry fee collection posts to eth undersigned in its original position without any damage and any claim in respect of water tax/ electric fee."
08. Clause 15 of the Auction Notice supra, makes it mandatory for the petitioner to handover the possession of the 'Entry Fee Collection Posts' to the Executive Officer, Municipal Committee, Ganderbal, at the end of the contract period, i.e. on the midnight of 31st of March, 2018, which date has already OWP No. 213/2018 Page 4 of 6 expired. Clause 14 aforementioned provides that the Contractor shall, while offering the bids, have to visualize all the conditions/ circumstances like Hartals, unfavorable circumstances, unrest, etc., well in advance and that, later on, no claim for relaxation in the ceiling of the contract, on this context, shall be entertained. The petitioner has accepted the terms and conditions incorporated in the said Auction Notice with open eyes and is, thus, precluded from taking shelter under the plea that due to the attack on the Yatra at Anantnag, being his primary source of revenue, he suffered huge losses and is, as such, entitled to any compensation or continuance of the contract of allotment. Even if he be entitled to compensation so claimed, it is for the Government to take a call on that because the measure of compensation to be paid to a person, who has suffered any loss, has to be considered and determined by the Government that has the liberty to take a decision on it. It is not within the domain and power of this Court to do so, particularly on the face of clause 14 of the Auction Notice. On the premise of the said condition, the petitioner cannot seek and claim the compensation or the extension of the period of contract. The respondents were correct in issuing the fresh tender notice at the appropriate time and, if such tender notices are not issued in time, it will cause a huge loss to the public exchequer. It will have a cascading effect and in the ultimate analysis, it will reflect adversely on the functioning of the Municipal Committee that is dependent on the revenue. It goes without saying that the petitioner can also participate and compete in the fresh tender notice/s.
09. In view of the preceding analysis, the petition of the petitioner does not merit any consideration and is liable to be rejected. Since the term of the contract, allotted to the petitioner, has already expired, therefore, the respondents cannot be ordained not to proceed further with the impugned fresh OWP No. 213/2018 Page 5 of 6 Auction Notice. However, before parting, it needs must be said that the Government may, in its wisdom and discretion, think it appropriate to consider the claim of the petitioner of compensation to the petitioner and take measures to mitigate the loss that the petitioner is, alleged, to have incurred.
10. Writ petition, alongwith connected MP(s), is, accordingly, dismissed.
11. In view of the order passed hereinabove, OWP No. 388/2018 shall also stand dismissed.
(M. K. Hanjura) Judge SRINAGAR July 9th, 2018 "TAHIR"
OWP No. 213/2018 Page 6 of 6