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2013 DIGILAW 576 (JK)

Mohd. Amin Seh v. State

2013-09-24

Mansoor Ahmad Mir

body2013
1. By the medium of this writ petition, the petitioner is seeking a Writ in the nature of Mandamus commanding the official respondents to issue formal allotment order of revised plan of the Cafeteria and to make payment in his favour for the work done by him, on the grounds taken in the writ petition. 2. The facts in brief are that Executive Engineer, Verinag Development Authority, respondent no.3 herein, vide NIT No.EE/VDA/08 dated 04.12.2007 invited tenders from the registered contractors for construction of a Cafeteria at Verinag. The approximate cost of the construction was shown as Rs.36.55 lacs. Petitioner along with others applied. Thereafter comparative statement was prepared by the respondents and the petitioner was found to have quoted the lowest rates amongst the competing contractors. Respondent no.3 invited him for negotiation and it was agreed that the work will be executed by the petitioner at the cost of Rs.50 lacs or on the rates quoted by him. However, the allotment order was delayed but, keeping in view the urgency involved, he was asked to start the work. The petitioner, accordingly, started the work as per the direction of respondents 2 & 3 and their subordinate officers. However, the then Secretary to Government, Tourism & Culture Department and MLA of Dooru Assembly Constituency disapproved the designs and specifications given in the tender notice and desired distinctive architectural look of Cafeteria which would blend with the Mughal Architecture in view of the fact that the said sight was closed to the Veri Naag Spring, which is known as a master piece of Mughal Architecture. Accordingly, it was decided to revise the plan and design the Cafeteria in the same manner. The job of drawings and specifications was entrusted to the Consultant working under the name and style of M/s. Creations, Jawahar Nagar, Srinagar, a reputed Architect. The said Consultant after having discussed with the officers revised the drawings (annexure `C' to the writ petition). Accordingly, the petitioner was asked to execute the work. He completed the work except interior ornamental works. The petitioner made so many representations (annexure D, Dl, D2 & D3), but without any result. Thereafter, respondent no.3 made communication to the Secretary to Government, Tourism & Culture Department in response to one of the representations of the petitioner. The said communication is dated 03.09.2009, which contains details of the original plan and also the revised plan. The petitioner made so many representations (annexure D, Dl, D2 & D3), but without any result. Thereafter, respondent no.3 made communication to the Secretary to Government, Tourism & Culture Department in response to one of the representations of the petitioner. The said communication is dated 03.09.2009, which contains details of the original plan and also the revised plan. It also contains details of the work which the petitioner had executed. Petitioner has also claimed cost of the carriage incurred while transporting the material from the place of origin to the place of destination and also the cost of brick tiles and carriage charges from Kathua to Veri Naag in terms of the revised plan and designs. 3. Writ petition was admitted on 13.09.2011. Respondents have filed the counter. It has been admitted by them that the petitioner offered lowest rates amongst the competing contractors. Thereafter, he was called for negotiation of rates and the work was allotted to him at the cost of Rs.38,28,422/-. They while admitting that minor changes were made in the designs contended that the same did not affect the construction of petitioner. They, however, contended that the agreement contained the alteration clause; therefore, the writ petition is not maintainable. 4. Petitioner has filed the rejoinder and has given in detail how, when and where modifications were made in the original plan. He has also annexed the revised plan along with the modifications made while claiming that the amount given in the counter was in fact round about l/3rd of the total amount spent by him. 5. Admittedly, the petitioner was the lowest bidder and had to execute the work. Allotment order was delayed. It appears the parties negotiated and the petitioner was asked to start execution of the work. The designs and specifications were disapproved by the MLA concerned and Secretary to Government, Tourism & Culture Department and the same is not denied by the respondents, but have stated that there were only minor changes in the designs. It has also been admitted that the petitioner after executing the work handed over the building to the respondents. 6. Annexure `A' to the writ petition shows that the tenders were issued, while as specifications of the construction are given in annexure `C'. It has also been admitted that the petitioner after executing the work handed over the building to the respondents. 6. Annexure `A' to the writ petition shows that the tenders were issued, while as specifications of the construction are given in annexure `C'. Annexure `F' is a communication which was made by respondent no.3 to respondent no.1, which discloses that there were major changes in the plan and designs. It also contains annexure `A' which shows where changes were made. In this communication the respondents have admitted that there were major changes in the designs and specifications. Even the respondents have not specifically denied the same in the counter, rather it is evasive denial. The pleadings of the parties have important role to play in determining the rights of the parties. The respondents have to either specifically admit or deny the averments/pleadings. If any evasive denial is made that would amount to admission. Thus, only on this count the writ petition merits to be allowed. My view is fortified by the judgment of Apex Court in Asha v. Pt. B.D. Sharma University of Health Sciences, (2012) 7 SCC 389 . It would be appropriate to reproduce paragraphs 17, 18 & 19 herein. "17. It is a settled principle of law of pleadings that an averment made by the appellant is expected to be specifically denied by the replying party. If there is no specific denial, then such averment is deemed to have been admitted by the respondent. In the present case, it is evident that the above-noted averments in the writ petition were relevant and material to the case. In fact, the entire case of the appellant hinged on these three paragraphs of the writ petition. It was thus, expected of the respondents to reply these averments specifically, in fact to make a proper reference to the records relevant to these paragraphs. In view of the omission on part of the respondents to refer to any relevant records and failure to specifically deny the averments made by the appellant, we are of the considered view that the appellant has been able to make out a case for interference. 18. In view of the omission on part of the respondents to refer to any relevant records and failure to specifically deny the averments made by the appellant, we are of the considered view that the appellant has been able to make out a case for interference. 18. Not only this, if the averments made in paragraph 9 of the writ petition are correct and the appellant had instantaneously raised her claim before the respondents, followed by making of the representation, we see no reason why the claim of the appellant could not be settled at that time or in any case in the subsequent counseling held on 30th September, 2011, where the appellant was admittedly present. The attendance sheet produced before us shows that the appellant was present on all the three days. Even the records produced by the respondents before the Court support the case of the appellant. 19. The appellant filed the writ petition before the High Court without any undue delay and on 4th November, 2011, the judgment by the court was passed in her favour. The cumulative effect of the above factual matrix, the pleadings of the parties and the expeditious manner in which the appellant had taken action before the authorities and then before the court and pursued her remedies, persuade the Court to believe that the case of the appellant is truthful. The cases of the present kind are not required to be tested by us on the touchstone of stringent principles of burden of proof applicable to criminal jurisprudence. As already mentioned, it was the obligation of the respondents to specifically deny the averments made by the appellant and to produce the relevant records to show that the stand taken by them is worthy of credence. Having failed to do so, they cannot shift the burden upon the appellant and expect this Court to believe that a student of the same college would disappear at the relevant time of counseling after having marked her presence at the counseling." 7. Annexure `H' to the rejoinder, made by respondent no.3 to respondent no.2, discloses that the civil work of the said Cafeteria was complete on 16.05.2011 and handing over/taking over was made. Annexure `H' to the rejoinder, made by respondent no.3 to respondent no.2, discloses that the civil work of the said Cafeteria was complete on 16.05.2011 and handing over/taking over was made. In paragraph-4 of the rejoinder it has been averred that the Government has sanctioned rupees one crore vide Government Order No.531-TSM of 2011 dated 17.11.2011 in order to meet out the liability of petitioner. It has specifically been averred in the rejoinder that the Government has rightly earmarked the said amount while keeping in view that there were major modifications in the designs and specifications. The said fact has also not been denied by the respondents. 8. Keeping in view the discussion made hereinabove, I am of the considered view that the petitioner has carved out a case for interference. Accordingly, the writ petition is allowed. Respondent no.1 is directed to consider the case of petitioner for release of his payment while keeping in view the revised plan and the fact that major changes were made in the designs and specifications read with the Government Order whereby rupees one crore was sanctioned for constructions of the Cafeteria, within a period of three months from the date a copy of the order is served upon them. 9. Disposed of along with connected CMP.