Research › Search › Judgment

J&K High Court · body

2013 DIGILAW 486 (JK)

Hafiz Construction Co. Pvt. Ltd. v. State

2013-08-27

MUZAFFAR HUSSAIN ATTAR

body2013
1. Construction of Corporate Office Complex of Jammu & Kashmir State Power Development Corporation Limited (JKSPDC) at Silk Factory, Raj Bagh, Srinagar, became subject matter of dispute between the petitioner and State and its other authorities in OWP 65/2013. Writ petition was disposed of vide order dated 09-04-2013. Mr. Chashoo, learned AAG, had stated at the bar in the said case that the respondents proposed to re-advertise the tender notice and decision in this behalf is expected to get manifest by issuance of formal order shortly. The Court disposed of the writ petition on the expectation that the respondents will issue fresh tender notice after the conditions, set out in the tender notice, which was impugned in the said writ petition, are modified. 2. Government of J&K, on 19-02-2013 issued order No. 47-PW(R&B) of 2013, which is taken note of: Government of Jammu & Kashmir Civil Secretariat: Public Works (R&B) Department Sub: - Revised financial delegation for works to be allotted to JKPCC. Reference: - Cabinet decision No. 25/05/2013 dated 18.08.2013 Govt. Order No. 47-PW(R&B) of 2013 Dated: 19.02.2013 In partial modification of Government Order No.245-PW(R&B) of 2005 dated:-07-07-2005 issued under endorsement No.PW/Acctts/ JKPCC/97/481 dated:-07-07-2005, it is hereby ordered that All Civil works costing more than Rs.700.00 lakhs as against 100.00 lakhs shall be allotted to the Jammu & Kashmir Project Construction Corporation Ltd. (JKPCC) in respect of all Government Departments and Government Corporations. In case the JKPCC are not in a position to take up works for any reason the Public Works Department, (PWD) will have the works executed by following all Codal formalities. By Order of Government of Jammu & Kashmir. Sd/- Commissioner Secretary to Govt. PW (R&B) Department. Dated: 19-02-2013 No: - PW/Acctts/JKPCC/97/1641 3. The aforesaid Government order was issued in pursuance of Cabinet Decision No. 25/05/2013 dated 18-02-2013. Since the Government order provided that all civil works costing more than Rs. 700.00 lacs as against Rs.100.00 lacs shall be allotted to Jammu & Kashmir Project Construction Corporation Ltd. (JKPCC) in respect of all Government Departments and Government Corporations, a Letter of Intent for construction of Corporate Office Complex of JKSPDC at Silk Factory, Raj Bagh, Srinagar, was issued on 03-07-2013. The petitioner amended the writ petition (OWP 972/2013) and sought to challenge the aforementioned Letter of Intent and Government order. The Court permitted the petitioner to amend the writ petition. The petitioner amended the writ petition (OWP 972/2013) and sought to challenge the aforementioned Letter of Intent and Government order. The Court permitted the petitioner to amend the writ petition. The Court, on 18-07-2013, issued notice to the respondents and meanwhile directed that till next date, Letter of Intent dated 03-07-2013 shall not be acted upon. This interim direction is continuing till date. 4. Mr. G.A.Lone, learned counsel for the petitioner, in support of the averments made in the writ petition, submitted that the Government order dated 19-02-2013 deserves to be quashed, in as much as, the Government, in exercise of its executive power, could not pass an order which has the effect of infringing the fundamental right of the petitioner to carry on trade and business guaranteed under article 19(1)(g) of the Constitution of India. Learned counsel referred to article 19(6) and submitted that it is only by making law that the right of the petitioner to carry on trade and business could be curtailed. Learned counsel further submitted that petitioner's right to carry on trade and business could not be taken away in the manner it has been done by the respondents. He further submitted that monopoly has been created in the JKPCC, which could be done only by making a law and not in exercise of executive power of the State. He also submitted that JKPCC does not have the wherewithal to execute works of such great magnitude. Mr. Lone also submitted that JKPCC has been issuing allotment orders in favour of different agencies, which include private contractors also to execute the works which they were otherwise required to execute in terms of earlier Government orders. Learned counsel, in support of his contention, referred to the judgments of the Hon'ble Supreme Court reported in AIR 1981 SC 101, AIR 1963 SC 1295 , 1986(3) SCC 615 , AIR 1962 SC 1044 , AIR 1970 SC 129 , AIR 1975 SC 32 and submitted that this writ petition deserves to be allowed. He also submitted that the petitioner's right to carry on trade and business, having been infringed by issuance of impugned Government order, it cannot be said that he has no locus to file this writ petition. 5. Mr. R.A.Jan, learned counsel appearing on behalf of respondent No.4, produced xerox copy of memorandum of JKPCC. He submitted that this Company was incorporated in the year 1965. Mr. 5. Mr. R.A.Jan, learned counsel appearing on behalf of respondent No.4, produced xerox copy of memorandum of JKPCC. He submitted that this Company was incorporated in the year 1965. Mr. Jan also referred to page 2nd of the memorandum of Association of JKPCC to indicate that in pursuance of policy decision of the State Government, a decision was taken by the council bearing No. 178 dated 03-02-1965 and in sequel thereto Government order No. E-65-WIP of 1965 dated 09-02-1965 was issued, whereunder sanction was accorded to the formation of a Company under J&K Company's Act 1977, for construction of projects in the State and for the objects mentioned in the memorandum of Association of the proposed Corporation. Clause III of the memorandum of Association of JKPCC provides the objective for which the Corporation was established and at paragraph (3), one of the purposes of establishing the Corporation was to enter into any contract or arrangement for more efficient conduct of business of the Company or any part thereof and to sub let contracts from time to time upon such terms and conditions as may be felt expedient. Learned counsel submitted that it is in pursuance of the policy of the State Government that Government has been issuing orders from time to time and one such order was issued on 07-07-2005, whereunder it was provided that all civil works costing more than Rs.100.00 lacs shall be allotted to the JKPCC in respect of all Government Departments and Government Corporations. Learned counsel further submitted that in terms of the impugned Government order, which has been issued in pursuance of the Cabinet decision and, in essence, is a policy decision of the State, the ceiling has been raised from Rs.100.00 lacs to Rs.700.00 lacs. Learned counsel submitted that the Government has not created any monopoly in the JKPCC nor right of any person, to carry on trade or business, has been affected by issuance of said order. He further submitted that a person has right to carry on trade and business as guaranteed by article 19(1)(g) of the Constitution of India but no person has fundamental right to have a contract with the Government. Learned counsel submitted that it is in this backdrop that objection is raised about the maintainability of the writ petition. He further submitted that a person has right to carry on trade and business as guaranteed by article 19(1)(g) of the Constitution of India but no person has fundamental right to have a contract with the Government. Learned counsel submitted that it is in this backdrop that objection is raised about the maintainability of the writ petition. He further submitted that for issuance of a writ by this Court in exercise of its power under article 226 of the Constitution of India, read with section 103 of the Constitution of J&K, the person, who approaches this Court has to show that he has a right in law vested in him and it is that legal right which has been infringed by the action of the respondents. Learned counsel submitted that, in no other circumstance, a person can approach this Court and seek issuance of writ of CetIorari. He further submitted that for issuance of writ of Mandamus, there again has to be a legal right vested in a person and there has to be corresponding statutory obligation or public duty to be discharged by the respondents. He submitted that in the facts of this case, all these legal requirements are lacking and, consequently, writ petition merits dismissal. Mr. Jan, in support of his contention, referred to the judgement of the Hon'ble Supreme Court reported in 2012(8) SCC 216 . 6. Mr. Chashoo, learned AAG, appearing for the State of J&K, while adopting the submissions made by Mr. Jan, and while making further reference to the pleadings in the writ petition, submitted that the petitioner has pleaded that he has executed the works for a particular amount. Mr. Chashoo submitted that the work, for which Letter of Intent has been issued in favour of the JKPCC, are of higher value. Learned counsel also prayed for dismissal of the writ petition. 7. Mr. M.A.Thakur, learned AAG, appearing for respondents 2&3, submitted that JKSPDC is charged with the responsibility of construction of power projects. It is a huge Corporation and there is an urgent need for having a Corporate Office for it so as to enable the authorities of the Corporation to discharge their duties with great efficiency. Learned counsel also referred to the judgments of the Hon'ble Supreme Court reported in (1999) 1 SCC 492 , (2005) 1 SCC 679 and prayed for dismissal of the writ petition. 8. Learned counsel also referred to the judgments of the Hon'ble Supreme Court reported in (1999) 1 SCC 492 , (2005) 1 SCC 679 and prayed for dismissal of the writ petition. 8. Article 19 (1)(g) and clause (6) of the Constitution of India are reproduced hereunder : 19. Protection of certain rights regarding freedom of speech, etc. (1) All citizens shall have the right ------ a. To freedom of speech and expression; b. To assemble peaceably and without arms; c. To form association or unions; d. To move freely throughout the territory of India; e. To reside and settle in any part of the territory of India; 11[and] f. [* * *] g. To practise any profession, or to carry on any occupation, trade or business. (6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the state from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and in particular, 16[nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the state from making any law relating to,------ I. The professional or technical qualification necessary for practising any professional or carrying on any occupation, trade or business, or II. The carrying on by the state, or by a corporation owned or controlled by the state, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise]. 9. The petitioner, who is a registered contractor, has right to carry on trade and business in accordance with the mandate contained in article 19(1)(g) aforementioned. This right can be curtailed by making a law as provided in Clause (6) of article 19 of the Constitution of India. The main thrust of argument of Mr. Lone, learned counsel for the petitioner, is that by issuance of impugned order, in exercise of executive power of the State, the right of the petitioner to carry on trade and business has been infringed and such right could be abridged or curtailed only by making law. The main thrust of argument of Mr. Lone, learned counsel for the petitioner, is that by issuance of impugned order, in exercise of executive power of the State, the right of the petitioner to carry on trade and business has been infringed and such right could be abridged or curtailed only by making law. It is, thus, required to be seen as to whether the impugned order affects the fundamental right of the petitioner guaranteed under article 19(1)(g) and whether any monopoly has been created in favour of JKPCC. 10. What appears from perusal of Government order No. 47-PW(R&B) of 2013 dated 19-02-2013 supra is that the Government has been allotting works to JKPCC in respect of civil works from time to time in respect of Government Departments and Corporations. JKPCC has been brought into existence to fulfill certain purposes of the State. It is a Government Corporation. One of the objectives of this Corporation is to perform any contract or work that will be assigned to it. Paragraph 3&4 of the objectives of the Corporation are taken note of: 3. To carry into any contract or arrangement for the more efficient conduct of the business of the company or any part thereof and to sublet contracts from time to time upon such terms and conditions as may be thought expedient. 4. to carry on in India or elsewhere the business of metal workers, builders and contractors, engineers, merchants, importers and exporters and to buy, sell and deal in property and articles of all kind. 11. The aforementioned paragraphs provide that one of the objectives of the Corporation is to carry on in India or elsewhere the business of metal works, builders and contractors, merchants, importers and exporters and to buy, sell and deal in articles of all kinds. 12. The State discharges multifarious functions. It has constituted JKPCC with an avowed purpose to serve the public cause. The State is within its rights, till such time it does not infringe any of the legal rights of any other person, to direct for doing of any of the things which are mentioned in the objectives of the Corporation by the Corporation itself. The State of J&K, is thus functioning in certain matters through JKPCC which includes undertaking of all civil works. The State of J&K, is thus functioning in certain matters through JKPCC which includes undertaking of all civil works. In terms of the impugned order, which is borne out of the bosom of the policy decision of the State Government, what has been done is that the ceiling limit has been raised from Rs. 100.00 lacs to Rs. 700.00 lacs, thus, restricting the JKPCC to undertake civil works which are costing less than Rs. 700.00 lacs. This would, otherwise, mean that all civil works costing less than Rs.700.00 lacs are to be allotted, through permissible legal mode, to the eligible person/s while following the mandate contained in article 14 of the Constitution of India. Right of the petitioner to carry on trade and business is not thus taken away by issuance of impugned Government order. He has still the right to carry on trade and business with any person, Company or even with the Government of State of J&K. He is not completely shut out from the business by issuance of the impugned Government order. Once it is held that petitioner's right to carry on trade and business is not infringed, in consequence thereto, it has to be held that he is not an aggrieved person and has no right to file this writ petition as none of his legal rights have been violated. The Hon'ble Supreme Court in a case reported 2012(8) SCC 216 at paragraph 22 (e) has specifically held that no person can claim a fundamental right to carry on business with the Government. In the facts of this case, since the petitioner is held not to be an aggrieved person in respect of the impugned Government order, his challenge to the said order on the ground that his right to carry on trade and business has been abridged by issuance of Government order and not by making a law, cannot be entertained. The judgments cited at bar by learned counsel for the petitioner, in this behalf, do not, thus, advance cause of the petitioner in the facts of this case. The Government order, in essence, has enlarged the field of activity and business of the petitioner and like person/s, as the JKPCC has been authorized to do the execution of works of contract, the value whereof is more than Rs.700.00 lacs. The Government order, in essence, has enlarged the field of activity and business of the petitioner and like person/s, as the JKPCC has been authorized to do the execution of works of contract, the value whereof is more than Rs.700.00 lacs. It is pertinent to mention here that in terms of the impugned order, even the petitioner can execute the works of the value of more than Rs. 700.00 lacs, where JKPCC refuses to execute any such work. Viewed from any angle, the right of the petitioner to carry on trade and business is neither affected nor taken away. 13. For the aforementioned reasons, it is held that the petitioner is not an aggrieved person and has no right to file this writ petition, which is, accordingly, dismissed along with connected CMPs. Interim direction shall stand vacated.