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2018 DIGILAW 204 (JK)

Fayaz Ahmad Bhat v. State

2018-04-04

M.K.HANJURA

body2018
ORDER : M.K. Hanjura, J. 1. By the medium of this writ petition, the petitioner has questioned the Auction Notice bearing No. MCP/Pul/2018/1806-10 dated 08-02-2018, issued by the respondent No. 3 - Executive Officer, Municipal Committee, Pulwama. The brief facts, vital for determination of this petition are that the petitioner, being the highest bidder, was allotted a contract for the collection of Adda/Entry fee for the financial year 2016-17 by the Municipal Committee, Pulwama vide order bearing No. MC/Pul/2016/1984-89 dated 31-03-2016. However, the petitioner has pleaded that due to the turmoil that erupted in the valley of Kashmir in the month of July, 2016, the business activities came to a grinding halt and the business community including the petitioner faced huge financial losses. It is further pleaded by the petitioner that in view of such losses, he approached the respondents for extension of contract but they did not pay any attention to this request of the petitioner. They went ahead and issued another auction Notice dated 27-02-2017. Being aggrieved, the petitioner took up the matter with the Contractors Associations, who were also involved in the collection of the entry fee at various places under different Municipal Committees and who had approached the Government for compensating the losses incurred by them during the same period of turmoil. The petitioner states further that in terms of order dated 31-03-2017 (annexure-C), the respondent No. 1 conveyed approval of the Administrative Department for extension of 03 months of entry fee contract for the year 2016-17 in favour of the contractors of the different Municipal Committees of Kashmir Division, including the petitioner, and as such the auction notice dated 27-02-2017 was not acted upon. It is further stated by the petitioner that in the order of extension, a condition was incorporated that the entry fee contract for the next financial year 2017-18 shall be continued with the same contractor on the increase of 0.25% in case of contract of Rs. 50/- lacs and above and 0.5% in respect of contractors below Rs. 50/- lacs with further stipulation that the contractor has to deposit the full amount of next years contract in one go. It is further stated by the petitioner that in view of this development, he was advised to deposit Rs. 38,94,712/- in the Committee Chest in one go, which was deposited by him. 50/- lacs with further stipulation that the contractor has to deposit the full amount of next years contract in one go. It is further stated by the petitioner that in view of this development, he was advised to deposit Rs. 38,94,712/- in the Committee Chest in one go, which was deposited by him. The petitioner has further stated that to his utter dismay, the respondents, in spite of collecting that amount from the petitioner, are going to put the contract to tenders again and they are reviewing the order for the continuation of the contract to the previous contractors. 2. Aggrieved of the action of the respondents, the petitioner approached the Court by medium of OWP 855/2017 and the Court was pleased to pass an order. However, during the pendency of the said petition, the respondents allotted the contract of collecting entry fee, canteen and weighing bridge for a period of one year to another contractor. It is further stated by the petitioner that he filed another writ petition (OWP 998/2017) seeking implementation of order bearing No. 190 DHPM of 2017 dated 08-06-2017 (annexure-J), by virtue of which, the contract period of the petitioner was extended. The Court, vide order dated 19-07-2017, directed the respondents to accord consideration to the claim of the petitioner having regard to the aforesaid order. The respondents did not choose to implement the Court order. The petitioner has stated further that during the pendency of the writ petitions, the respondents assured him verbally that he will be compensated for the losses suffered by him due to the unrest of 2016 and he will be allowed to continue with the contract with fresh terms. The petitioner has further stated that the respondents kept him in dark and at his back issued the impugned auction notice and are trying to allot the contract to some other party. The petitioner has finally prayed for allowing the writ petition and has sought quashing of the impugned auction notice. 3. In the objections, filed by the respondents, they have stated that in terms of the direction dated 19-07-2017, passed in OWP 998/2017, filed by the petitioner earlier in point of time, claim of the petitioner has been considered, vide order bearing No. DULB/CC/859/2017/PS/194 of 2018 dated 15-02-2018 and the same, being without merit, has been rejected. 3. In the objections, filed by the respondents, they have stated that in terms of the direction dated 19-07-2017, passed in OWP 998/2017, filed by the petitioner earlier in point of time, claim of the petitioner has been considered, vide order bearing No. DULB/CC/859/2017/PS/194 of 2018 dated 15-02-2018 and the same, being without merit, has been rejected. Respondents have further stated that they are otherwise duty bound to issue fresh auction notices at the appropriate time, which if not done, will cause a huge loss to the public exchequer. They have further stated that the alleged loss, that has incurred to the petitioner, has been assessed and the measures, to mitigate the same, have already been extended to him. It is also stated by the respondents that only those contractors were given the benefit of relaxation, who had deposited 80% and above of the contract amount with a further stipulation that they shall deposit the remaining 20% within 15 days from the date of extension and those contractors, who are defaulters as on date, shall be provided with an opportunity to deposit the outstanding amount in one go before they are extended the relief. Respondents have further stated that the petitioner was conveyed the approval of extension in his favour for a period of three months subject to certain conditions. Respondents have further stated that the relief claimed by the petitioner cannot be granted at this point of time as it will cause irreparable loss to the public exchequer which cannot be compensated. At the end the respondents have prayed for dismissal of the writ petition. 4. Heard and considered. 5. Before recapitulating the main points of the controversy involved in this petition, the allotment order bearing No. MC/Pul/2016/984-89 dated 31-03-2016 (annexure-A), was issued by the Executive Officer, Municipal Committee, Pulwama, in favour of the petitioner regarding collection of Adda/Entry fee at the Municipal Committee, Pulwama, for the year 2016-17 and to be more precise, w.e.f. 01-04-2016 to the midnight of 31-03-2017 against the total highest bid amount of Rs. 51.80/- (Rupees Fifty one lacs & eighty thousand only), out of which, the petitioner deposited Rs. 41.60 Lacs @ 80% in the Chest of the Municipal Committee, Pulwama, vide A/C No. 1346 JRY, Pulwama, and the remaining amount, reckoned and calculated at Rs. 51.80/- (Rupees Fifty one lacs & eighty thousand only), out of which, the petitioner deposited Rs. 41.60 Lacs @ 80% in the Chest of the Municipal Committee, Pulwama, vide A/C No. 1346 JRY, Pulwama, and the remaining amount, reckoned and calculated at Rs. 10.20/- lacs had to be paid by the petitioner through Payees Account cheque favouring the Executive Officer, Municipal Committee, Pulwama, on 01-07-2016. 6. The petitioner in this petition seeks threefold reliefs. One that the impugned fresh Auction Notice, issued vide No. MC/Pul/2018/1806-10 dated 08-02-2018 be quashed; second, that the respondents be directed to pay the compensation for the loss suffered by him due to the turmoil, in which the valley of Kashmir was engulfed in the year 2016, which may either be in the shape of compensating the petitioner in terms of money or extending the contract as allotted to him vide order No. 190-DHPM of 2017 dated 08-06-2017 (annexure-J); and third that the respondents be commanded to allow the petitioner to continue on extension in view of the pendency of the earlier writ petition. 7. In case titled Municipal Corporation, Ujjain and others versus BVG India Limited and others, Hon'ble the Supreme Court reiterated that unless the Court concludes that the decision making process or the decision taken by the authority bristles with mala fides, arbitrariness or perversity or that the authority has intended to favour someone, the Constitutional Court will not interfere with the decision making process or the decision of the administrative authorities, especially those relating to acceptance of the tender and award of the contract. 8. Testing the case of the petitioner from the perspective of the law laid down above, clauses 4 & 6 of the order of allotment dated 31-03-2016 made in favour of the petitioner require to be detailed herein below and these read as under: "... ... ... ... ... ... ... 4. That the contractor shall be bound to handover the possession of all Tollposts back to Municipal Committee, Pulwama, at the close of financial year i.e., 31-03-2017 upto the midnight without any delay and hesitation and has to obtain no objection certificate from this Institution in his behalf, failing which action as warranted under law will be initiated against the contractor on his risk, cost and responsibility. ... ... ... ... ... ... ... 6. ... ... ... ... ... ... ... 6. The Municipal Committee, Pulwama, shall not be responsible and bound to provide any kind relief/relaxation/compensation in the event of any adversity or unavoidable circumstances like Bandhs and Hartals which may lead the contractor to sustain financial losses." 9. Clause (4) of the order supra, makes it mandatory for the petitioner to handover the possession of the Tollposts to the Municipal Committee, Pulwama, at the close of the financial year i.e. on the midnight of 31-03-2017, which date has already expired. Clause (6) aforementioned provides that the Municipal Committee, Pulwama, shall not be responsible and bound to pay any kind of relief/relaxation/compensation, in the event of any adversity or unavoidable circumstance like Bandhs & Hartals, which may lead the contractor to sustain any financial loss. The petitioner has accepted the terms and conditions incorporated in the said allotment order with open eyes and is, thus, precluded from taking shelter under the plea that due to the unrest which the valley of Kashmir went through in the year 2016-17, he is entitled to any compensation or continuance of the contract of allotment and even if he be entitled to it, it is for the Government to take a call on that because the measure of compensation to be paid to a person, who has suffered any loss, has to be considered and calculated by the Government that has the liberty to take a decision on it. It is not within the domain and power of this Court to do so, particularly on the face of the clause (6) of the order of allotment. On the premise of the said condition, the petitioner cannot seek and claim the compensation or the extension of the period of contract. The respondents were correct in issuing the fresh tender notice at the appropriate time and if such tender notices are not issued in time, it will cause a huge loss to the public exchequer. It will have a cascading effect and in the ultimate analysis, it will reflect adversely on the functioning of the Municipal Committee that is dependent on the revenue. It goes without saying that the petitioner can also participate and compete in the fresh tender notice/s. 10. In view of the preceding analysis, the petition of the petitioner does not merit any consideration and is liable to be dismissed. It goes without saying that the petitioner can also participate and compete in the fresh tender notice/s. 10. In view of the preceding analysis, the petition of the petitioner does not merit any consideration and is liable to be dismissed. Since the term of the contract, allotted to the petitioner, has already expired, therefore, the respondents cannot be ordained not to proceed further with the impugned fresh Auction Notice. However, before parting, it needs must be said that the Government may, in its wisdom, deem it appropriate to consider the claim of compensation of the petitioner and take measures to mitigate the loss that the petitioner is, alleged, to have incurred. 11. Writ petition is, accordingly, disposed of along with connected IAs.