Muzaffar Ahmad Rather v. J&K Projects Construction Corporation Ltd.
2020-11-10
SANJEEV KUMAR
body2020
DigiLaw.ai
Judgment Sanjeev Kumar, J.—This petition has been filed by two petitioners, who claim to be contractors, jointly to throw challenge to the order of cancellation bearing No.PA/GM/K/16/4416/28 dated 29.12.2016, NIT No.14/e-tendering/DGM/5th/ANG/JKPCC of 2018-19 dated 18.02.2019 and NIT No.22/e-tendering/DGM/5th/ANG/JKPCC of 2019-20 dated 29-06-2019. The petitioners also seek a direction to the respondents to allow them to execute the work of construction of Block-A of District Hospital, Anantnag, allotted to them vide allotment/authorization No.JKPCC/V/A/2898 dated 08.02.2013. There is also a direction sought to the respondents to release the amount payable to the petitioners for the work already executed by them. 2. The grievance as projected by the petitioners in this writ petition has arisen out of the following factual background: (i) The petitioners, as is claimed by them, were allotted the work of construction of Block A at District Hospital, Anantnag (Civil Work only) up to 1st floor slab level under order No. No.JKPCC/V/A/2898 dated 08.02.2013. The work was to be executed by the petitioners on the approved rates of the Corporation and was allotted in favour of the petitioners without inviting tenders. (ii) It is the grievance of the petitioners that while they were busy in executing the work as per the drawings supplied by the respondent Corporation, the respondent No.2 issued impugned NIT dated 18th of February, 2019 inviting e-Tenders for the work of balance framed structure up to 1st floor slab level at District Hospital, Anantnag, which was already under execution of the petitioners. (iii) Feeling aggrieved, the petitioners challenged the aforesaid NIT before the Court of learned Principal District Judge, Anantnag, by filing a suit for declaration. The learned Principal District Judge, Anantnag, vide interim order dated 26th of February, 2019, stayed the operation of the impugned NIT. (iv) It is submitted that during the pendency of civil suit (supra), which was being contested by the respondents, the respondents issued another NIT dated 29th of June, 2019, regarding the same works which were under execution of the petitioners. It is also claimed by the petitioners that the respondents at the back of the petitioners issued impugned order dated 29th of December, 2016, cancelling the allotment/letters of intent issued in their favour. 3.
It is also claimed by the petitioners that the respondents at the back of the petitioners issued impugned order dated 29th of December, 2016, cancelling the allotment/letters of intent issued in their favour. 3. In the aforesaid backdrop, learned counsel for the petitioners argued that the cancellation of their allotment at their back and issuance of fresh NIT, particularly NIT dated 29th of June, 2019, was totally illegal and in violation of the principles of natural justice. It is argued that once learned Principal District Judge, Anantnag, had stayed the operation of fresh e-Nit issued by the respondents on 18th of February, 2019, there was no point in issuing the selfsame NIT yet again on 29th of June, 2019. Terming the act of respondents totally illegal and arbitrary, the petitioners claimed issuance of writs as prayed for in this petition. 4. Respondents have filed their reply affidavit and have contested the claim of the petitioners, inter alia, on the ground that the allotment/authorization given to the petitioners to execute the work was in their capacity as piecemeal workers and no contract was ever awarded to them. It is contended by the respondents that handing over the works to different contractors and piecemeal workers without inviting tenders was against the codal formalities and, therefore, a decision was taken by the respondents to cancel all such illegal allotments/authorizations. This is how the respondents justified the issuance of cancellation order dated 29th of December, 2016. It is also urged by the respondents that the cancellation order was passed on 29th of December, 2016, the petitioners have raised their grievance against such cancellation only in the year 2019, which challenge of the petitioners is belated and barred by delay and latches. Reliance has been placed by the respondents on the Division Bench judgment of this Court dated 13th of May, 2015, rendered in OWP No.951/2013 titled Ghulam Mohammad Khan Vs. State of J&K & Ors. wherein the Division Bench of this Court has held that no contract can be allotted by the JKPCC without inviting tenders. 5. Having heard learned counsel for the parties and perused record, I am of view that there is no illegality or arbitrariness in the decision taken by the respondents. As is borne out from the record, the subject work was never allotted to the petitioners after inviting tenders and completing the requisite codal formalities.
5. Having heard learned counsel for the parties and perused record, I am of view that there is no illegality or arbitrariness in the decision taken by the respondents. As is borne out from the record, the subject work was never allotted to the petitioners after inviting tenders and completing the requisite codal formalities. As a matter of fact and as is evident from the communication of respondents bearing No.JKPCC/V/A/2898 dated 8th of February, 2013, the Manager I/C District Hospital Works, Anantnag, was only authorized to take up the work of construction of Block A at District Hospital, Anantnag (Civil Works) through petitioners on the rates in vogue in J&KPCC Limited. Technically speaking, the communication dated 8th of February, 2013, is not an order of allotment but, in essence, is an authorization by the J&KPCC to its Manager to get the subject work executed through agency of the petitioners. Admittedly, such procedure of allotment of public works was not in consonance with law. This is exactly what was subject matter of controversy in OWP No.951/2013 which was decided by a Division Bench of this Court on 13th of May, 2015. The Division Bench took notice of memorandum of association of JKPCC and concluded that the Corporation was not authorized to allot the works without inviting tenders. It appears that the respondents realizing the illegality which they had committed decided to correct the wrong and, accordingly, issued impugned order on 29th of December, 2016 cancelling all letters of intent/allotment issued by Deputy General Managers of different units of the Corporation without approval of the competent authority and without fulfillment of codal formalities. Pursuant to the aforesaid cancellation order, the petitioners too were ousted from the works under their execution. This necessitated the issuance of fresh e-tenders for allotment of the work in terms of judgment of the Division Bench as also in consonance with law. 6. So far as the pendency of civil litigation is concerned, the suit which was filed by the petitioners before the Court of Principal District Judge, Anantnag, was ultimately dismissed as withdrawn. 7. In view of the foregoing discussion, I do not find any illegality in the impugned NITs or impugned order of cancellation dated 29th of December, 2016. The writ petition to that extent is found to be without any merit and the same is, accordingly, dismissed.
7. In view of the foregoing discussion, I do not find any illegality in the impugned NITs or impugned order of cancellation dated 29th of December, 2016. The writ petition to that extent is found to be without any merit and the same is, accordingly, dismissed. However, the petitioners, who have, admittedly, executed some work as piecemeal workers, are, nonetheless, entitled to the payment for the work executed by them and, accordingly, a direction is issued to the respondents to release in favour of the petitioners the payment due to them forthwith. The payment due to the petitioners be worked out and released in their favour within a period of eight weeks from the date copy of this order along with complete paper book is served upon the respondents. It is made clear that in case the payment due to the petitioners is not released within the period stipulated, the same shall become payable with simple interest @9% per annum till its final realization.