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2000 DIGILAW 95 (JK)

ABDUL AZIZ SHEIKH v. STATE OF J. & K.

2000-05-08

SYED BASHIR-UD-DIN

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ORDER 1. Petitioners alleged contractors were allotted various works for improvements, construction and treatment of various spots of Dab and Lal Canals by Executive Engineer and Assistant Executive Engineer (Irrigation) Ganderbal. For the purpose, allotment letters were issued by Executive Engineer and Assistant Executive Engineer in July, 1997. Petitioners claim, that pursuant to these allotment letters, they executed agreements for their respective works with respondents 4 and 5. Some of these works were completed and some are near completion as per the schedule and specifications laid down by the above respondents. Petitioners have not been given payments for these works despite their presentations and service of notice through their counsel, respondents 5 and 4, Assistant Executive Engineer and Executive Engineer (Irrigation) Ganderbal, took up the matter with their higher ups and requested for allotment of funds to the tune of Rs. 60 lacs for Lar Canal and Rs. 35 lakhs for Dab Canal to meet the requirement of the petitioners for the work done pursuant to said allotment orders. The funds were initially earmarked for these works, but were subsequently withdrawn for other works. Not only so, the respondents in disrespect to the rules and regulations have issued a fresh tender NIT 5 of 1997-98 dated 31.3.1998, inviting tenders for the completion by them in terms of the said allotment orders. This action of near completion. Petitioners are seeking writ to quash the above NIT 5 of 97 and further to restrain respondents from allotting these works pending payment under the said NIT. The Mandamus is prayed to allow the petitioners to complete the remaining work(s) allotted to them and for payments of the bills to the tune of Rs. 60 lacs for the works carried out or in the process of being carried out by them of Lar and Dab Canals. 2. Official respondents have in reply questioned the very maintainability of the writ on the ground that disputed questions are involved. Besides the allotment orders are not issued by the Competent authority. No lawful agreement exists between the parties. Petitioners have alternate remedy to approach the Civil Court. No legal rights of petitioners have been infringed nor any statutory obligation is cast on respondents to exercise powers as desired by the petitioners. the allotment of works have no legal basis. The claimed allotments are not covered by any legal authority or sanction. No lawful agreement exists between the parties. Petitioners have alternate remedy to approach the Civil Court. No legal rights of petitioners have been infringed nor any statutory obligation is cast on respondents to exercise powers as desired by the petitioners. the allotment of works have no legal basis. The claimed allotments are not covered by any legal authority or sanction. No agreement in law has come into existence between the parties. Respondents 4 and 5 had to take up the matter with their higher ups and could not have allotted the works on their own. As respondents 4 and 5 have acted clandestinely the matter as brought to the notice of State Government, was inquired and the works already carried out had to be scrutinized and verified on spot. A Committee was constituted. The Committee has given report to the Government and has recommended that as a fait-accompli the payment on account of execution of work are to be made on assessment of works done by the concerned persons, after actually ascertaining the claim of each of the petitioners on spot on inquiry and on verification. The report of the Committee is under consideration and appropriate orders thereto, informed of public interest, are in pipeline. It is specifically averred and refused that NIT-5 of 97-98 dated 20.3.1998, has been issued in respect of works which have either been completed or are nearing completion by petitioners. The above NIT-5 is for the works which are required to be taken in public interest and does not concern or involve the works completed or left incomplete by the petitioners. The allegation of petitioners that the NIT-5 in respect of works allotted to them is asserted to be totally false. 3. Heard. 4. It is manifest that the allotment of works (Annexure-A to A30) by Executive Engineer and Assistant Executive Engineer, respondents 4 and 5, is stated to be beyond their powers, without authorisation. The execution of agreements pursuant to these allotment letters is equally disputes. The legality of the agreements, if any between the party(ies) is questioned. It is further contended that the writ jurisdiction of the Court cannot be resorted to, when petitioners case is contested on facts and law. The matter is of civil nature and can be adequately addressed in a civil suit. The legality of the agreements, if any between the party(ies) is questioned. It is further contended that the writ jurisdiction of the Court cannot be resorted to, when petitioners case is contested on facts and law. The matter is of civil nature and can be adequately addressed in a civil suit. The claims regarding works done, the quality and quantity thereof, as also the payments to which each of the executant is entitled are matters of inspection and verification on ground level and before a committee constituted for the purpose. 5. Petitioners have not specifically laid claim to any specific amount. It is not a case where payment is sought of an amount(s) admitted and acknowledged by the other side. No claim is laid to a definite amount. Casewise or otherwise no liability is worked out in money terms. 6. Then the question is, whether in such circumstances, a writ petition can lie. If a party has grievance due to breach of obligation committed by the other party to the contract, can it be a ground to approach High Court, under Article 226 of the Constitution (Section 103 of J.&K. Constitution). 7. In Burmah Construction Co. v. State of Orissa (AIR 1962 SC 1320), it was pointed out (Para 6) - "The High Court normally does not entertain a petition under Article 226 of the Constitution to enforce a civil liability arising out of a breach of contract or a tort ......." 8. In Lekh Raj Sathramdas Lalvani v. N. M. Shah, Dy. Custodian Bombay (AIR 1966 SC 334), it is again said (para 5) : "........ the chief function of the writ is to compel the performance of public duties prescribed by statute and to keep the subordinate tribunals and officers exercising public functions within the limits of their jurisdictions. Any duty or obligation falling upon a public servant out of a contract entered into by him as such public servant cannot be enforced by the machinery of a writ under Article 226 of the Constitution ....." (See also (AIR 1977 SC 2149)). 9. Any duty or obligation falling upon a public servant out of a contract entered into by him as such public servant cannot be enforced by the machinery of a writ under Article 226 of the Constitution ....." (See also (AIR 1977 SC 2149)). 9. In Radhakrishna Agarwal v. State of Bihar (AIR 1977 SC 1496), it is laid (para 10) : "At the very threshold or at the time of entry into the field of consideration of persons with whom the Government could contract at all, the State, no doubt, acts purely in its executive capacity and is bound by the obligations which dealings of the State with the individual citizens import into very transaction entered into in exercise of its constitutional power. But after the State of its agents have entered into the field of ordinary contract the relations are no longer governed by the constitutional provisions but by the legally valid contract which determines rights and obligations of the parties inter se. No question arises of violation of Article 14 or of any other constitutional provision which the State or its agents, purporting to act within this field, perform any act." 10. On the face of the allotment Orders A2 to A-13, it would be seen that the allotment orders issued by respondents Nos. 4 and 5; are not in the name of Governor nor there is any thing to show that the authority to enter into Contracts vested in these respondents. It cannot be said that an enforceable contract has come into being between the parties. There is no justification to maintain the writ petition in respect of alleged rights following from the contract. Obviously, in such case, alternate remedy by way of a suit is available to the petitioners as party to the contract. At the most the respondents or other party to a non-statutory contract, like all other parties to such a contract have the alternative adequate and efficacious remedy of pursuing the matter before Civil Courts in respect of rights and liabilities arising under the contract. Such forum can examine both contested questions of fact and law. 11. In Union Construction Co. v. Chief Engineer Eastern Command, Lucknow (AIR 1960 All 72), it is pointed out : "..... Such forum can examine both contested questions of fact and law. 11. In Union Construction Co. v. Chief Engineer Eastern Command, Lucknow (AIR 1960 All 72), it is pointed out : "..... But quite apart from the question whether or not the existence of an alternative remedy is an absolute bar to the issue of writ of mandamus, it is well known that normally a Court would not be justified in issuing it when there is a clear alternative remedy and when there is no complaint of a breach of a fundamental right." 12. The specific counter assertion and denial on affidavit in reply, that NIT 5 of 97-98, does not cover the works allotted to petitioners which have been either completed or are in the process of completion, have not been put to tenders is enough, besides other grounds, to disentitle petitioners to any relief in the writ jurisdiction of this Court to undo to notice to invite tenders for execution of work(s). The tendering process as also allotment of work(s) thereto cannot in the facts and circumstances appearing on record be put under any restraint. 13. In result, the writ petition is dismissed in limine. Petition dismissed.