Jammu & Kashmir High Court
Abdul Rashid Malik vs Union Territory Of J&K And on 7 May, 2022
Author: Sindhu Sharma
Bench: Sindhu Sharma
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
WP(C) No. 873/2021
Pronounced on: 7.05.2022
Abdul Rashid Malik .... Petitioner/Appellant(s)
Through:- Mr. Irfan Mohd. Khan,
Advocate
V/s
Union Territory of J&K and .....Respondent(s)
others
Through:- Mr. Ravinder Gupta, AAG
CORAM : HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE
JUDGMENT
01. The petitioner, a contractor by profession claims to have executed different construction works of road which were allotted to him after participating in the tendering process issued by the respondents. That pursuant to different work orders, the petitioner has executed the construction of road works from Kotli to Shikari Road situated at Village Kotli/Shikari, Tehsil Mahore, District Reasi.
02. The Assistant Executive Engineer, PWD (R&B) Spl. Sub Division, Mahore-respondent No. 5 herein and Executive Engineer, PWD (R&B) Spl. Sub-Division, Mahore i.e. respondent No. 4 after on spot enquiry and measurement of different types of road works executed by the petitioner had prepared detailed estimate of the entire road construction work done from Kotli to Shikari under NABARD with cost overrun scheme.
03. The Superintending Engineer PWD (R&B), Reasi-Udhampur vide his communication dated 03.10.2015 conveyed post-facto approval 2 WP(C) No. 873/2021 for execution of work for construction of B/wall and R/wall in Km 1 st RD 0-100, 725-775 on Kotli to Shakri Road in Km 2 nd RD 75-225, on the same rates, terms and conditions as already approved vide office allotment No. 2296-97 dated 19.10.2014. Similarly, on 26.02.2018 post-facto approval was conveyed for construction of 6 meter long scupper in Km 2nd RD 225-275, RD 425-450 and construction of B/wall in Km 1st RD 725- 775 Km 2nd RD 950-1000 and Km 3rd RD 825-850 on Kotli to Shakari Road 225-300 and then an approval was conveyed for construction of B/wall in Km 1st RD 225-300 on Kotli to Shakari Road on 07.07.2017.
04. The petitioner submits that although he has executed all these works but the payment due to him for successful execution of the aforesaid works has not been made to him till date. The respondent No. 4 has admitted the claim of the petitioner and vide his communication dated 17.07.2020 had requested respondent No. 3-Superintending Engineer, PWD (R&B) Udhampur for allocation and sanction of an amount of Rs. 53.03 lacs to enable the respondents to settle pending claims of the contractor. It appears that the respondent No. 5 again allotted restoration of works to the petitioner vide allotment order No. PWD/R&B/M/2020- 21/284-287 dated 05.06.2020 but subsequently vide communication dated 11.06.2020, there were handed over to PMGSY Division, Mahore for up gradation.
05. The grievance of the petitioner is that even though he has successfully executed all the works allotted to him to the entire satisfaction of the respondents but the respondents, despite admitting their liability to make payments have not released amount due to him till date. 3 WP(C) No. 873/2021
06. The respondents in their objections submitted that the petitioner has raised a belated claim of Rs. 23.19 lakh and, therefore, the same is required to be rejected. The respondents have not denied the execution of the aforesaid work by the petitioner. It is also admitted by the respondents in their objections that there was balance payment of Rs. 10,01,017 in respect of the following works; the details of which are given in para 5 which reads as under:-
" (1) Construction of B/Wall and R/Wall 6.0 in Km 2 nd RD 0-100, RD 725-775 & Km 2nd RD 75-225 where the original allotment was for Rs. 2,58,000/-, and thereafter, Superintending Engineer accorded approval for an amount of Rs. 5,42,000/- for the wok executed excess of original allotment amount, totaling to Rs. 8,00,000/- only and out of which Rs. 6,79,205/- stood paid and only an amount of Rs. 1,20,795/- is outstanding. Though the petitioner has executed the work amounting to Rs. 9,76,991/- but there is no approval from the competent authority to execute the excess work over and above the amount of Rs. 8,00,000/- in favour of the petitioner, therefore, the petitioner has no right to claim that excess amount of Rs. 1,76,991/- (2) Construction of 6.00 mtr long scupper in Km 2nd Rd 425-450 & construction of B/wall in Km 3rd 825-850 on Kotli to Shakari road, where the original allotted amount was Rs. 6,39,481/- and thereafter the Superintending Engineer, accorded approval for an amount of Rs. 9,81,634/- for the work executed excess of original allotment amount totaling to Rs. 16,21,115/- only and out of which Rs. 9,33,726/- stood paid to the petitioner and only an amount of Rs. 6,87,389/- is outstanding. Though the petitioner has executed the work amounting to Rs. 16,59,456/- but there is no approval from the competent authority to execute the excess work over and above the original amount of Rs. 16,21,115/- in favour of the petitioner, therefore the petitioner has no right to claim that excess amount of Rs. 38,341/-.4 WP(C) No. 873/2021
(3)Construction of Motorable road by way of E-Work in cutting in Km 1st RD 0-1000, the allotment was to the tune of Rs. 22,77,000/-
and the work done by the petitioner was to the tune of Rs. 17,42,497/- only. The petitioner has been paid an amount of Rs. 16,41,420/- only and only an amount of Rs. 1,01,077/- is yet to be paid to the petitioner.
(4)Construction of B/Wall in Km 1st RD 225-300 the original allotment was to the tune of Rs. 2,05,007/- and thereafter the Superintending Engineer, accorded approval for an amount of Rs. 1,52,400/- for the work executed excess of original allotment amount totaling to Rs. 3,57,407/- only. The petitioner has executed the work amounting to Rs. 2,96,756/- only and out of which an amount of Rs. 2,05,000/- stood paid and an amount of Rs. 91,756 is still outstanding."
As per these objections, an amount of Rs. 1,20,795/-; 1,76, 991; 6,87,389/-; 38,341; 1,01,077; 91,756 is yet to be paid to the petitioner. The only reason for denial of payment of the amount is that he has executed work in excess to the original allotment.
07. The respondents have neither denied the execution of works nor their liability to make the payment. They have also admitted that the works were executed but according to them, these works were undertaken by the petitioner without issuance of any allotment order, technical sanction, administrative approval and also without the availability of funds. The petitioner, according to him, had taken a calculated risk by executing these works on his own. This submission cannot be accepted in view of the fact that the respondents allowed the petitioner to execute the work.
08. The bills raised by the petitioner are not disputed, in fact, part payment against these bills have also been released in favour of the petitioner. The respondents have annexed details of the claims of the 5 WP(C) No. 873/2021 petitioner for works allotted to him as per Annexure-R1 with their objections. In terms of the same, the petitioner has executed the works and the amount due to the petitioner for the work executed by him is of Rs. 46,75,697/- but payment of only Rs. 34,59,351/- has been made to him payment of an amount of Rs. 10,01,017 is still pending with the respondents. The respondents as per Annexure-R2 have enclosed the details of claim of the petitioner for the work executed by the petitioner.
09. The works executed by the petitioner stands admitted, the bills raised before the respondents are also not disputed, in fact, the respondents have admitted that the entire work was executed by the petitioner departmentally. Since there was no sanction, administrative approval and allotment, therefore, the amount claimed by the petitioner despite the works executed by the petitioner, cannot be released in his favour.
10. The only issue which is to be considered is if there was no administrative approval, technical sanction or funds available with the respondents, then how and why these works were executed, and by whom in the absence of the approval, sanction and funds. Though any contractor executing the work on behalf of the respondents officials of the department undertakes the same on the firm belief that the work is being undertaken by him on the asking of respondents after its due approval and completion of all the formalities. It is not for the contractor to consider whether the administrative approval, technical sanction and other formalities have been completed or not before undertaking any work. In fact, it is for the respondents to explain how these works were executed in absence of the necessary approval and sanction.
6 WP(C) No. 873/2021
11. The respondents have admitted the execution of works as well as liability and details have also been provided by them, they cannot avoid their liability to pay by taking refuse in a technical sanction and administrative approval but despite that they are denying the same on account of administrative approval. This plea is not available to them as it was their domain to regarding grant of approval as well as technical sanction was given. They cannot raise this plea at this stage to defeat the claim of the petitioner.
12. In „M/s Surya Construction Vs. The State of U.P. in Civil Appeal No. 2610/2010 dated 02.05.2010' it is 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 V. 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 work 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.
13. The next contention of learned AAG is that the claim raised by the petitioner is belated and, therefore, the same cannot be raised. The respondents have issued a communication dated 17.07.2020 vide which Executive Engineer has written to the Superintending Engineer on 17.07.2020 seeking allotment of funds to settle the pending claims. The respondents have, thus, acknowledged their liability for payment pursuant to the execution of works. The petitioner had submitted the bills and sought 7 WP(C) No. 873/2021 payment of the same, as such, the respondents were to process the same and the petitioner cannot be held liable for any lapse on this account.
14. The respondents have acted arbitrarily, unreasonably and unfairly and in this case as the liability is admitted, therefore, the petitioner is held entitled to the payment of admitted amount for the work executed by him.
15. In view of the aforesaid reasons, this petition is allowed and respondents are directed to pay the petitioner balance amount of Rs.9,06,667/- and Rs. 10,01,700/- on account of the works executed and as per the bills along with interest @ 6% from the date payment has become due to the petitioner.
(Sindhu Sharma) Judge JAMMU 7.05.2022 Ram Murti Whether the Judgment is speaking : Yes Whether the Judgment is reportable : Yes