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2015 DIGILAW 194 (JK)

Mir Sons Construction v. State of J&K

2015-04-17

HASNAIN MASSODI

body2015
JUDGMENT : Hasnain Massodi, J. 1. There possibly can be no worst example of abuse of judicial process, than one presented by case in hand. Petitioner Company has been able not only to maintain the petition without cause but stall the execution of project of huge public importance. Proposal to construct 120 Mtr. long 4 lane R.C.C Bridge over Flood Spill Channel at Mehjoor Nagar, Srinagar (hereinafter "Mehjoor Nagar Bridge") conceived way back in 2002 at the cost of Rs. 598.80 lacs is now to cost the State Exchequer a few times the initial cost, thanks to apathy and indifference shown by one and all towards expeditious settlement of the dispute that in the facts and circumstances of case should not have arisen at all. In the process, efficient road connectivity to hundreds of thousands of people of Mehjoor Nagar, Padshahi Bagh and adjoining areas continues to remain a distant dream and the general public exposed to immense hardships. The Court also cannot escape responsibility for contributing to the delay in resolution of the dispute. First an over view of background facts. The State Government in 2002, to improve connectivity and mobility of traffic in view of high intensity of traffic on different routes decided to construct two bridges, i.e. 125.20 Mtr. Long 2 lane PSC Bridge over river Jhelum at Noorbagh, Qamerwari, Srinagar and Mehjoor Nagar Bridge. 2. The Government, earlier vide Government Order No. PD. Re-Const-Bridge/35/30197, dated 11th July 1997, while dealing with construction of various projects in the Valley, directed Chief Engineer, PWD(R&B), Kashmir to allot new major bridges to Jammu and Kashmir Project Construction Corporation (JKPCC) and also mobilize agencies like UP Bridge Corporation, Gavnen India Limited, M/s. TP Gupta and other local contractors for the purpose. 3. Chief Engineer, PWD(R&B), Kashmir, Srinagar in the Agenda Note, prepared for fixation of contract for Noorbagh Bridge and Mehjoor Nagar Bridge recommended allotment of contract for construction of two bridges to the Petitioner Company. The Agenda Note noticed that the Petitioner Company vide its Letter No. Msc/101/02-03/154-156, dated 9th April 2002, had approached Government (PWD) with regard to allotment of contract for construction of two bridges to the company on "turnkey basis" and in terms of Letter No. PW/State/Plan/41/2002, dated 28th May 2002, the request was desired to be examined by the Public Works Department. The Agenda Note also emphasized that "Designing and Construction of one 254 Mtr. The Agenda Note also emphasized that "Designing and Construction of one 254 Mtr. long PSC Bridge over Flood Spill Channel at Bemina" at a cost of Rs. 750,00 lacs entrusted to the Petitioner Company was partly completed and that the Company had also been allotted construction of other major bridges. Chief Engineer, PWD(R&B), Kashmir-author of the Agenda Note, pointing out that the Petitioner Company being one of repute and fully equipped with machines and manpower, deserved to be encouraged. The proforma a information regarding availability of funds and recommendations to allot the work to the Petitioner Company at the cost of Rs. 598.00 lacs and Rs. 461.99 lacs respectively, was appended to the Agenda Note. 4. The matter came up before the Contract Committee headed by Principal Secretary to Government, Public Works Department, on 26.11.2002. The Committee after deliberating on the matter, concluded as under: ".....The contract committee after due deliberation and discussion came to the consensus of opinion regarding the allotment of the above bridges to M/s. Mir Sons Construction Private Limited and on the plea that the rates quoted by the firm are low as compared to the rates quoted by JKPCC for the same nature of bridges executed by them and recommended for approval by competent authority, thereafter, the contract committee shall clear. 5. The decision taken by the Contract Committee on 26.11.2002, as evident from Communication No. PD/R&B/plan-41/2002, dated 31st December 2002, found approval of Hon'ble Minister of State for Works. The minutes of the meeting were, accordingly, issued. Chief Engineer, PWD(R&B), Kashmir, vide aforementioned communication was asked to take further appropriate action as per the minutes under intimation to the Public Works Department. 6. The matter did not see any progress and the Chief Engineer, PWD(R&B), Kashmir did not proceed in the matter as Administrative Department instructed him to keep allotment of contract pending for the "time being" because of non-availability of funds. The matter was taken by the Administrative Department with Deputy Secretary to Government, Ministry of Road, Transport and Highways, Parliamentary Bhavan, New Delhi, for incorporating the projects i.e. construction of two bridges in question under Road Central Fund (CRF) and release of funds for execution of the projects. 7. Failure to accord approval to the projects by the Government of India, Ministry of Road, Transport and Highways (MORTH), led to non-allotment of contract. 7. Failure to accord approval to the projects by the Government of India, Ministry of Road, Transport and Highways (MORTH), led to non-allotment of contract. Chief Engineer, PWD(R&B), Kashmir vide Communication dated 08.12.2006, accordingly, informed Commissioner/Secretary to Government PWD(R&B). An effort was made, though without any success, to get the projects transferred to the State Sector. In the meantime, Economic Reconstruction Agency (ERA) decided to take up and execute the projects utilizing the loan received by Government of India from Asian Development Bank (ADB) for Multi-Sector Project for Infrastructure rehabilitation in Jammu and Kashmir. 8. Jammu and Kashmir, Economic Reconstruction Agency (ERA) vide Notice dated 10th March 2007, invited offers for construction of Mehjoor Nagar Bridge. The notice gave the details of "qualification requirements of potential bidders" and the deadline for receipt of bids as 16th April 2007. Petitioner company was amongst the five construction companies who responded to the notice dated 10th March 2007. Economic Reconstruction Agency (ERA), considered the "Technical Bids" received from the contractors including the Petitioner Company and held the bids of three aspirants for the contract including the Petitioner Company as non-responsive. Only two bidders namely Gavnen India Ltd. and M/s. Construction Engineers were declared to be qualified to undertake the contract and their price bids to be opened and price bids of other three contractors including the Petitioner Company returned. 9. Petitioner Company on 1st May 2007, came up with writ petition on hand insisting that Contract Committee having decided in its meeting held on 26.11.2002 to allot the contract to the Petitioner Company and the decision to have been approved by the Competent Authority, the Economic Reconstruction Agency (ERA), did not have right to float Tender Notice dated 10th March 2007, or to proceed with the tendering process. Petitioner company pleaded that as it had to incur huge expenses on Preparing drawings and designs and such drawings, designs and the rates quoted, had found approval of the Contract Committee as well as Competent Authority, it had a right to get contract allotted in his favour. 10. Petitioner Company on the strength of averments made in the petition sought an appropriate writ declaring notice of Invitation for Bids vide No. Transport-Sgr/NCB/dated 10th March 2007 as arbitrary, capricious and offending the principle of promissory estoppel and legitimate expectation and therefore non-est in law. 10. Petitioner Company on the strength of averments made in the petition sought an appropriate writ declaring notice of Invitation for Bids vide No. Transport-Sgr/NCB/dated 10th March 2007 as arbitrary, capricious and offending the principle of promissory estoppel and legitimate expectation and therefore non-est in law. It further sought a Writ of Certiorari for quashing of aforementioned notice and a direction to Respondent No. 1 to 6 to allot the contract to the Company. A direction was also sought commanding respondents to desist from execution of the work pursuant to the Notice of Invitation for Bids dated 10th March 2007. 11. On 8th June 2007, in CMP No. 533/2007, filed alongside writ petition, parties were directed to maintain status quo till the matter would come up before the Bench. On 15th December 2007, the order dated 8th June 2007, was modified and respondents allowed to open bids including financial bids and prepare comparative statement thereof, without formally allotting work to any of the bidders otherwise than in accordance with the order passed by the Court. The respondents opened the bids and went ahead in the matter by issuing fresh Tender for the work in question. On 20th February 2008, after it was brought to the notice of the Court through CMP No. 139/2008, that the respondents by issuing fresh Tender Notice dated 17th January 2008, had made an attempt to defeat the status quo order dated 8th June 2007, the order was directed to remain in operation. 12. The net effect of the order dated 8th June 2007, read with order dated 20th February 2008, is that the allotment and construction of Mehjoor Nagar Bridge has been put on hold till date, unmindful of the fact that with every passing day, the construction cost goes sky rocketing and a project that could have been executed at a particular cost may now involve cost a few times the initial cost. 13. Petitioner Company during the pendency of the writ petition made a representation to the respondents to refer the petitioner's claim for award of construction of two bridges i.e. Noorbagh Bridge and Mehjoor Nagar Bridge, to State Level Contract Committee. Respondents acting on the representation made by the petitioner referred only petitioner's claim vis-a-viz Noorbagh Bridge to State Level Contract Committee (SLCC). Respondents acting on the representation made by the petitioner referred only petitioner's claim vis-a-viz Noorbagh Bridge to State Level Contract Committee (SLCC). The Committee considered the matter and vide decision dated 4th March 2011, decided to allot construction of Noorbagh Bridge to the Petitioner Company on lump sum cost of Rs. 958.17 lacs i.e. three times the initial cost. A formal allotment in this regard was made to the Petitioner Company on 8th March 2011. 14. Petitioner Company aggrieved that its request for reference of its claim as regards Mehjoor Nagar Bridge was not referred to State Level Contract Committee (SLCC) laid an application being IA Mo. 1781/2013, for a direction to respondents to consider petitioner's claim for award of contract for construction of Mehjoor Nagar Bridge to the Petitioner Company on the analogy of Noorbagh Bridge allotted vide order dated 18th March 2011. The respondents on 30th August 2013, were directed to consider Petitioner Company's claim in accordance with law, Government orders and in light of the documents annexed with the application. Petitioner company thereafter filed affidavit on 26-09-2013, to enable respondents to accord consideration to its claim and comply with order dated 30th August 2013. The respondents did not accede to the petitioner's request to refer Mehjoor Nagar Bridge to State Level Contract Committee (SLCC). Petitioner therefore was constrained to amend the petition. Leave to amend the petition was granted on 14th July 2014 and the amended petition taken on record. 15. Petitioner Company in amended petition filed on 21st July 2014, reiterated the stand taken in the earlier petition. It in addition to relief already sought, asked for quashment of Order dated 23rd May 2014, whereby Chief Executive Officer, Economic Reconstruction Agency (ERA) rejected Petitioner Company's claim for award of contract to construct Mehjoor Nagar Bridge on the analogy of the decisions taken on 4th March 2011 read with allotment order dated 18th March 2011, whereby contract to construct Noor Bagh Bridge was allotted to the petitioner. Challenge is also thrown to Tender Notice dated 26th May 2014, styled as Invitation of Bids" under Project No. and title P41116-043-IND Jammu and Kashmir Urban Sector Development Investment Program-Project 3 to the extent it relates to the Mehjoor Nagar Bridge. 16. Challenge is also thrown to Tender Notice dated 26th May 2014, styled as Invitation of Bids" under Project No. and title P41116-043-IND Jammu and Kashmir Urban Sector Development Investment Program-Project 3 to the extent it relates to the Mehjoor Nagar Bridge. 16. The writ petition is opposed by respondents 1, 2, 7 to 9 on the grounds that the recommendation made by the Contract Committee to allot contract for construction of Mehjoor Nagar Bridge to the petitioner Company did not find approval of the Administrative Department and the Administrative Department vide its Letter No. PW/R&B/Plan-41/2002, dated 1.1.2003 directed the Roads and Building Department not to take up the project till it was approved by the Ministry of Road, Transport and Highways (MORTH), Government of India and funds made available to execute the project. It is stated that the Scheme was treated as closed as evident from Administrative Department's Communication No. PW/R&B/Plan-4/02 dated 17.04.2006. It is insisted that the writ petition in the said background is not maintainable and is liable to be dismissed. Respondent No. 1, 2, 7 to 9 admit that subsequently the Scheme was approved as a Multi Sector Project for Infrastructural Rehabilitation in Jammu and Kashmir by Asian Development Bank to be executed by the Nodal Agency to coordinate externally funded development projects in the State. It is denied that any promise was made to the Petitioner Company that it would be allotted construction of Mehjoor Nagar Bridge. 17. Respondents 3 to 6 oppose the writ petition on the grounds that at no point of time, construction of Mehjoor Nagar Bridge, was allotted by State Government, Central Agency or Economic Reconstruction Agency (ERA) in favour of the Petitioner Company or a commitment made to the Petitioner Company that the construction of the Bridge would be allotted to it. It is pleaded that the Petitioner Company is keen to get the contract allotted in its favour in an unprecedented mode without adherence to due process of law and to the exclusion of all eligible aspirants for the contract. 18. It is stated that construction of Jehangir Chowk-Rambagh Flyover undertaken by Economic Reconstruction Agency (ERA) under Loan Package 2 Tranche-3 granted by Asian Development Bank makes it necessary to divert city traffic and construction of Mehjoor Nagar Bridge to make possible such diversion and smooth movement of traffic, is of utmost public importance. 18. It is stated that construction of Jehangir Chowk-Rambagh Flyover undertaken by Economic Reconstruction Agency (ERA) under Loan Package 2 Tranche-3 granted by Asian Development Bank makes it necessary to divert city traffic and construction of Mehjoor Nagar Bridge to make possible such diversion and smooth movement of traffic, is of utmost public importance. It is pleaded that Economic Reconstruction Agency (ERA) had initiated tendering process so that the construction of Mehjoor Nagar Bridge is undertaken immediately before the Loan Package ceases to be available. It is pointed out that State and public in general have already suffered huge loss inasmuch as lone package 1 (2151) sanctioned by Asian Development Bank for construction of Mehjoor Nagar Bridge has come to an end on 30th September 2013, without work undertaken, because of the present litigation. The litigation is said to have put on hold not only construction of Mehjoor Nagar Bridge but also construction of two Grade Separators in Srinagar city. It is maintained that the construction of Mehjoor Nagar Bridge has all along been under control and jurisdiction of Economic Reconstruction Agency (ERA), ever since the Agency came into existence in the year 2004-05 and that State Level Contract Committee did not have jurisdiction to accord consideration to Petitioner Company's claim much less award contract to the Company. The Petitioner Company is said to have no right to claim any right to get the construction of Mehjoor Nagar Bridge in its favour on the parity of Noor Bagh Bridge, as construction of Noor Bagh Bridge was not at any point of time under the control or jurisdiction of Economic Reconstruction Agency (ERA). Much emphasis is laid on loss of loan package for construction of Mehjoor Nagar bridge because of the litigation, insisting that Economic Reconstruction Agency (ERA) cannot afford to lose the current loan package as well and the subject public at large, to immense hardships. 19. Respondents 3 to 6, question the Petitioner Company's right to challenge the evaluation criteria laid down in IFB/NIT on the ground that it differs from evaluation criteria specified by other Departments of the State Government. It is insisted that every executing agency has its own criteria and in case of ERA, the criteria is to obey and conform to the guidelines of the Asian Development Bank and not the State or Central Agency. It is insisted that every executing agency has its own criteria and in case of ERA, the criteria is to obey and conform to the guidelines of the Asian Development Bank and not the State or Central Agency. It is stated that the Petitioner Company is free to participate in tendering process and in the event it so decides, its offer would be examined having regard to the criteria and guidelines applicable to all the aspirants for the proposed contract. Respondents 3 to 6, seek dismissal of the writ petition with costs on the ground that the Petitioner Company without having any allotment order in its favour or a clear and definite commitment made by any of the Departments/Agencies involved, has no right to maintain the writ petition and delay the execution of the project of huge public importance. 20. I have gone through the pleadings as also documents available on the file. I have heard learned counsel for the parties. 21. Petitioner Company seeks to build up its case on twin principles of "promissory estoppel" and "legitimate expectation". It is pleaded that as the promise was made to the Petitioner Company that construction of Mehjoor Nagar Bridge would be allotted to it and the Company made to incur expenditure on preparation of plans, layouts and other details, it was no more open to respondents to withdraw from the promise and allot the project in question to any other person or agency. It is next urged that the conduct of the respondents, negotiations made and decisions taken at different levels has given rise to "legitimate expectation" that the contract in question would be allotted to it and the principle also stand in the way of the respondents to allot the contract to any other person or agency. 22. Learned counsel for the petitioner, to buttress his argument that a right accrued to the Company in the facts and circumstances of the case to get the contract on the principles of "promissory estoppel', places reliance on law laid down in State of H.P & Ors v. Ganesh Wood Products & Ors 1995) 6 SCC 363; The Union of India & Ors. v. M/s. Anglo Afghan Agencies AIR 1968 SC 718 (V55 C145); M/s. Motilal Padampat Sugar Mills Co. Ltd. v. The State of Uttar Pradesh & Ors. AIR 1979 SC 621 ; and Union of India & Ors. v. M/s. Anglo Afghan Agencies AIR 1968 SC 718 (V55 C145); M/s. Motilal Padampat Sugar Mills Co. Ltd. v. The State of Uttar Pradesh & Ors. AIR 1979 SC 621 ; and Union of India & Ors. v. Godfrey Philips India Ltd. The Union of India & Ors. v. India Tobacco Co. Ltd., and Union of India & Ors. v. The Vazir Sultan Tobacco Co. Ltd. Etc. AIR 1986 SC 806 . To reinforce the claim that the principle of "legitimate expectation", has application in the present case, support is sought by Mr. Jan, from law laid down in Food Corporation of India v. M/s. Kamdhenu Cattle Feed Industries (1993) 1 SCC 71 and Punjab Communications Ltd. v. Union of India & Ors. (1999) 4 SCC 727 . 23. Learned counsel for Respondent No. 3 disputes that the Petitioner Company can rely on either of the principles i.e. "promissory estoppel" and "legitimate expectation" to get the relief sought in the petition. Learned counsel, to reinforce his stand that principle of "promissory estoppels" would not be attracted in the present case, relies on law laid down in State of H.P & Ors. v. Ganesh Wood Products & Ors. (1995)6 SCC 363 . Similarly, application of principles of "legitimate expectation" is disputed by relying on law laid down in Sethi Auto Service Station & Anr. v. Delhi Development Authority & Ors. (2009) 1 SCC 180 . 24. It is not necessary to burden the judgment by reproducing facts and law laid down in reported cases referred to by either side. It would be appropriate, to summarise principles laid down in case law, relied upon by learned counsel as under: "(i) The doctrine should not be reduced to a rule of thumb. Being an equitable doctrine it should be kept elastic enough in the hands of the Court to do complete justice between the parties. (ii) It is a matter of holding the scales even between the parties -to do justice between them. This is the equity implicit in the doctrine. Being an equitable doctrine it should be kept elastic enough in the hands of the Court to do complete justice between the parties. (ii) It is a matter of holding the scales even between the parties -to do justice between them. This is the equity implicit in the doctrine. (iii) Government is not exempt from liability to carry out the representation made by it as to its future conduct and it cannot on some undefined and undisclosed ground of necessity or expediency fail to carry out the promise solemnly made by it nor claim to be the judge of its own obligation to the citizen on an ex-parte appraisement of the circumstances in which the obligation has arisen. (iv) Doctrine of promissory estoppel being an equitable doctrine, it must yield when the equity so requires, if it can be shown by the Government or public authority that having regard to the facts as they have transpired, it would be inequitable to hold the Government or public authority to the promise of representation made by it, the court would not raise an equity in favour of the person to whom the promise of representation is made and enforce the promise or representation against the Government or public authority. (v) In order to invoke the doctrine of promissory estoppel it is enough to show that the promisee has, acting in reliance on the promise altered his position and it is not necessary for him to further show that he has acted to his detriment. (vi) No distinction can be made between the exercise of a sovereign or governmental function and a trading or business activity of the Government so far as the doctrine of promissory estoppel is concerned. Whatever be the nature of the function which the Government is discharging is subject to the rule of promissory estoppel and if the essential ingredients of this rule are satisfied, the Government can be compelled to carry out the promise made by it. (vii) Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. (viii) Choice of the policy is for the decision-maker and not for the court. (vii) Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. (viii) Choice of the policy is for the decision-maker and not for the court. The legitimate substantive expectation merely permits the court to find out if the change in policy which is the cause of defeating the legitimate expectation is irrational or perverse or one which no reasonable person could have made. (ix) Legitimate expectation has no role to play where the state action is as a public policy or in the public interest unless the action taken amounts to an abuse of power. The court must not usurp the discretion of the public authority which is empowered to take the decisions under law and the court is expected to apply an Objective standards which leaves to the deciding authority the full range of choice which the legislature is presumed to have intended." 25. Perusal of the pleadings and record would reveal that idea to gel Mehjoor Nagar Bridge constructed by the Petitioner Company was floated by none other than Petitioner Company. The Company vide its Letter No. MSC/101/02-03/154-56, dated 9th April 2002, approached Public Works Department of the State Government with the proposal to construct Mehjoor Nagar Bridge as also Noor Bagh Bridge on "turnkey basis". The Department on receipt of the proposal from the Company vide Letter No. PW/State/Plan/41/2002, dated 28th May 2002, directed different stakeholders to examine the proposal. The proposal was accordingly examined at different levels and examination culminated in a detailed report submitted to the Principal Secretary to Government Public Works Department Bearing No. 7985, dated 17th August 2002. 26. The report emphasized that specialized type of constructions involved in the project in question is usually entrusted to agencies/firms from outside the State. It was, however, pointed out that, of late, such specialized works were taken up by local agencies/firms as well. Reference in this regard was made to "pre-stressed cement concrete bridge at Zaina Kadal" constructed by Petitioner Company. The report suggested that having regard to immediate need for Mehjoor Nagar Bridge as also other bridges on river Jhelum and the priority involved, it would be appropriate to get the bridges constructed by a local firms. Reference in this regard was made to "pre-stressed cement concrete bridge at Zaina Kadal" constructed by Petitioner Company. The report suggested that having regard to immediate need for Mehjoor Nagar Bridge as also other bridges on river Jhelum and the priority involved, it would be appropriate to get the bridges constructed by a local firms. It was pointed out that such a recourse would not only encourage local firms to take up and complete specialized type of constructions but also help Petitioner Company to keep its build up infrastructure in a proper use. 27. As a follow up to the report dated 17th August 2002, Petitioner Company was asked by Department vide its No. PW/Plan/41/2002, dated 10th September 2002, to submit its cost offer. The Company, accordingly, submitted cost offer of Rs. 598.80 lacs. The offer made was found quite reasonable by Chief Engineer PWD(R&B), Kashmir, Srinagar, as it worked out to be Rs. 4.99 lacs per metre as against Rs. 5.72 lacs per metre, paid to Jammu and Kashmir Project Construction Company (JKPCC) for construction of Aali Kadal and Narbal Bridges. Chief Engineer PWD(R&B) - Respondent No. 8 herein, accordingly, referring to a decision taken way back in 1996, by a Committee under chairmanship of Chief Secretary, whereby construction of major/minor bridges in the Valley was decided to be entrusted to local contractors/firms of repute, placed the matter before Contract Committee for consideration and approval. Contract Committee, in its meeting held on 26.11.2002, recorded agreement with the proposal. The proposal was approved by Hon'ble Minister of State for Works, as conveyed by Assistant Director(P) Public Works Department, vide communication dated 16th December 2002, amongst others, to Respondent No. 8. This was followed by communication dated 31st December 2002, addressed by Principal Secretary to Government, Public Works Department, to Chief Engineer, PWD(R&B), Kashmir, requiring him to take further action in the matter. 28. From perusal of the record, it transpires that the exercise initiated at the instance of Petitioner Company did not culminate in a formal allotment order or a firm commitment in favour of the Petitioner Company. Before the process to accord consideration to the proposal made by the Petitioner Company would reach its logical end, the Administrative Department as reflected in communication addressed by Respondent No. 8 to Respondent No. 1 asked the Respondent No. 8 to keep the contract allotment pending. Before the process to accord consideration to the proposal made by the Petitioner Company would reach its logical end, the Administrative Department as reflected in communication addressed by Respondent No. 8 to Respondent No. 1 asked the Respondent No. 8 to keep the contract allotment pending. Non-availability of funds for Mehjoor Nagar Bridge, was given as a reason to defer the matter and keep the contract allotment pending for the time being. The efforts made by the Administrative Department to get the project incorporated under Central Road Funds(CRF) as also an attempt to get the project included under State Sector failed. Resultantly contract to construct the Mehjoor Nagar Bridge was not allotted to Petitioner Company. 29. The communications, relied upon by the Petitioner Company to plead that the promise was made to it that construction of Mehjoor Nagar Bridge would be allotted to it, are only intra departmental communications never communicated to the Petitioner Company. The documents at the most lead to inference that Respondents 1, 2 and 8 found the proposal received from the Petitioner Company reasonable, enough to deserve consideration. The consideration, however did not get concretized into a formal allotment order or even a communication addressed to the Petitioner Company that contract in question was to be allotted to it. The exercise made, as a matter of fact, was an exercise in futility from day one as neither funds were available to execute the project nor was the project incorporated under Central Road Fund (CRF) or decided to be transferred to the State Sector. In the circumstances, question of extending a promise or assurance to allot the contract would not arise as execution of the project was a clear impossibility, from the date the proposal was entertained. 30. The very edifice of the Petitioner Company's case against the above backdrop therefore falls apart. Merely because proposal floated by the Petitioner Company attracted some consideration by Respondents 1, 2 and 8, the respondents toyed with an idea of getting the project in question executed by the Petitioner Company as a sequel to receipt of proposal, asked the Petitioner Company to convey its terms and conditions including price is not to give a "legitimate expectation" to the Petitioner Company that the contract would be allotted to it. The Government may, while contemplating execution of a project accord consideration to a number of proposals received from aspirants for such projects, even initiate dialogue with some or all of such aspirants, yet such deliberations are to neither work as an "estoppel" against the Government from abandoning the project or following some other route, nor give rise to "legitimate expectation" in favour of an aspirant for such contract, that it would bag the contract. It is only when the facts and events point to a promise or assurance express or otherwise, made to a person and the person, acting on such promise or assurance changes his position that principal of "promissory estoppel" would come into operation and prevent the Government from withdrawing from its promise or resorting to a course contrary to the promise or assurance extended. In the present case all these elements are missing. Petitioner merely because he was asked to elaborate the proposal and quote the price is not to nurse belief that a promise was being made that the contract would be allotted to the Petitioner Company. 31. It is not mere expectation nursed by an aspirant for a Government contract that the contract may fall in his lap, that would stand in the way of Government to get the contract executed by some other agency. A person day in and day out, may expect things to go his way and such expectation may turn out to be mis-conceived or mis-calculated. Such expectation are not to bind down anyone, least the Government. The expectation to stand in the way of Public Authority to take a decision in a particular manner, must be a "legitimate expectation" i.e. an expectation reasonably arising out of the facts and events. In the present case, the facts and events put together from the date a communication was addressed by the Petitioner Company to Respondent No. 8, signifying its interest in the project in question, till the Administrative Department directed Respondent No. 8 to keep the matter pending for the reasons detailed in the communications, are not to give rise to "legitimate expectation" to the Petitioner Company that the contract for construction of Mehjoor Nagar Bridge would be allotted to it. The Petitioner Company as a matter of fact was not privy to the exercise undertaken by the Respondent No. 1, 2 and 8 to consider its proposal. The Petitioner Company as a matter of fact was not privy to the exercise undertaken by the Respondent No. 1, 2 and 8 to consider its proposal. There were no deliberations, negotiations or conferences held involving the Petitioner Company touching the proposal. Whatever communications, relied upon were exchanged between the officers and officials at different levels. The proposal therefore, was at a "formative stage" and not taken to its logical conclusion. Petitioner Company therefore cannot base its claim on the principle of "legitimate expectation". 32. The above discussion apart, the Economic Reconstruction Agency (ERA) appeared as new player on the scene in 2004. It is a Society registered to execute externally aided projects for Infrastructural Rehabilitation in the State. Neither funds were available with the State Government to undertake the construction of Mehjoor Nagar Bridge nor was the bridge incorporated under Central Road Fund (CRF) or State Sector. Nonetheless need for providing the facility to the general public was taken to be urgent. The Economic Reconstruction Agency (ERA) stepped in and decided to construct the bridge with loan provided by Asian Development Bank for Multi Sector Projects for Infrastructural Rehabilitation in the State. The decisions taken by the Economic Reconstruction Agency (ERA) had nothing to do with the exercise initiated in 2002 by Respondent No. 2 and 8 to explore the possibility of getting the projects executed by a local contractor on receipt of a proposal from the Petitioner Company. The Petitioner Company therefore could no more bank on any assurance, that as per its perception, was received from Respondent No. 2 and 8 that the project would be got constructed by the Petitioner Company. This is the reason that Petitioner Company responded to the Tender Notice dated 10th March 2007, floated by Economic Reconstruction Agency (ERA) inviting offers from construction companies for construction of the bridges. 33. Petitioner Company by responding to Tender Notice impliedly accepted that the cause, though devoid of any merit, it had against Respondents 2 and 8, did not survive as against the Economic Reconstruction Agency (ERA). Its grievance revived only after its Technical Bid was held to be non-responsive. It now came up with the case that Economic Reconstruction Agency (ERA) did not have any authority to float the Tender Notice to which the Petitioner Company had responded. 34. Its grievance revived only after its Technical Bid was held to be non-responsive. It now came up with the case that Economic Reconstruction Agency (ERA) did not have any authority to float the Tender Notice to which the Petitioner Company had responded. 34. The Tender Notice issued by Economic Reconstruction Agency (ERA) on 10th March 2007, because of present litigation was not taken to its logical conclusion. Petitioner Company's request for allotment of contract to it was rejected by Chief Executive Officer, ERA-Respondent No. 4 herein on 23.05.2014. A fresh tender notice stands issued on 26th May 2014, inviting offers from intending bidders. The tendering process so initiated remains to be concluded because of ad-interim order dated 8th June 2007, read with order dated 20th February 2008. In the said background and in particular conduct of Petitioner Company, it cannot claim to have a cause against the Respondent No. 4, or other functionaries of Economic Reconstruction Agency (ERA). Only that in terms of guidelines Economic Reconstruction Agency (ERA) is to encourage local companies, would not ipso facto give Petitioner Company right to get contract in its favour, unless it participates in the tendering process and is found to have a better claim to the contract as against any non-local companies/firms. 35. For the reasons discussed, the petition is devoid of any merit and therefore liable to be dismissed. Petition is accordingly dismissed without costs. Ad-interim injunction shall stand revoked. 36. A threshold comment of disapproval, is made regarding delay in execution of project of immense public importance and avoidable loss to the State Exchequer, in the opening para of the judgment. The facts and events, as unfolded during the course of Judgment, justify the lament. However, a mere comment would not suffice. I am conscious that any inquiry into the circumstances that led to the present litigation, is not to result in any disciplinary action. However, response at appropriate level can be triggered, so that State Exchequer is not exposed to any loss in future, in similar circumstances. 37. However, a mere comment would not suffice. I am conscious that any inquiry into the circumstances that led to the present litigation, is not to result in any disciplinary action. However, response at appropriate level can be triggered, so that State Exchequer is not exposed to any loss in future, in similar circumstances. 37. It sounds intriguing that Respondent No. 8, entertained proposal from the Petitioner Company for a project and forwarded it to Respondent No. 2 and Respondent No. 2 directed Respondent No. 3 to ask the Petitioner Company to quote its price, without satisfying themselves whether funds were available to execute the project, or it was feasible to undertake such exercise without getting the project incorporated under Central Road Fund (CRF) or the State Sector. It was obligatory on part of Chief Engineer Public Works Department (R&B) and thereafter Commissioner/Secretary to Government Public Works Department, to proceed in the matter, only after they were confident that funds were available to execute the projects or it was otherwise permissible to go ahead in the matter. What was the use of making the exercise when it was not possible to undertake the construction. Had, Respondents 2 to 8 exercised some kind of discretion and desisted from examining the proposal, the present litigation and loss to the State Exchequer on account of price escalation and litigation costs could have been avoided. The responsibility for present litigation and resultant loss is squarely that of the then Chief Engineer PWD(R&B), Kashmir and Commissioner/Secretary to Government Public Works Department as also the then Hon'ble Minister of State for Works. Whether the matter should be looked into, to fix the responsibility is for Respondent No. 1 to decide. However, it would be appropriate if instructions are issued to all concerned that no exercise as undertaking in the present case should be initiated unless and until the authority undertaken the exercise is satisfied that there are sufficient funds to go for construction. In the present case, loss to State Exchequer on account of cost escalation, and litigation costs must be anywhere between Rs. 10 to Rs. 15 crores. This is over and above, the inconvenience suffered by thousands of people who would otherwise get benefited by the project. In the present case, loss to State Exchequer on account of cost escalation, and litigation costs must be anywhere between Rs. 10 to Rs. 15 crores. This is over and above, the inconvenience suffered by thousands of people who would otherwise get benefited by the project. None except Respondent 2 and 8 are to share blame for exposing the State to the loss, because proposal was received and examined without verifying whether it was possible to undertake execution of the project. Be that as it may, an appropriate instruction to all concerned that a proposal for construction of a project should be entertained only after, funds to execute the project are available or project in corporated in Centre or State Sector is likely to save the State from avoidable litigation and general public from unnecessary inconvenience.