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2022 DIGILAW 508 (JK)

Bashir Ahmad Malik v. Union Territory of J. & K.

2022-09-16

JAVED IQBAL WANI

body2022
ORDER : 1. The petitioner in the instant petition has prayed for the following relief: “(i) Issue an appropriate writ, order or direction, commanding the official respondents to issue a formal change order in favor of the petitioner for the construction of Ziyarat Sharief Hazrat Noor Shah Baghdadi (RA) Waltengoo, Kund, Kulgam in accordance with the administrative approval accorded vide Government Order No. 268-TSM of 2018 dated 19.09.2018. (ii) Issue an appropriate writ, order or direction, including one commanding the respondents to allow the petitioner to execute the work of construction of Ziyarat Sharief Hazrat Noor Shah Baghdadi (RA) Waltengo, Kund, Kulgam in accordance with the DPR sanctioned vide Government Order No. 268-TSM of 2018 dated 19.09.2018. (iii) Issue a appropriate writ, order or direction, including one restraining the respondent No. 7 from causing any sort of interference in execution of the work of construction of Ziyarat Sharief Hazrat Noor Shah Baghdadi (RA) Waltengoo, Kund, Kulgam in accordance with the DPR sanctioned vide Government Order No. 268-TSM of 2018 dated 19.09.2018. (iv) Issue an appropriate writ, order or direction, including one prohibiting the respondent Nos. 1-6 from retendering the work contract with respect to the of construction of Ziyarat Sharief Hazrat Noor Shah Baghdadi (RA) Waltengoo, Kund, Kulgam. (v) Issue an appropriate writ, order or direction, including one directing the respondents to release funds in favour of the petitioner in respect of the work done and expenses incurred and losses suffered by the petitioner at site.” 2. It is being averred in the petition that an e-NIT No. DT/M and W/L/23 of 2016-17 dated 24.10.2016 came to be issued by respondent No. 4 herein inviting e-tenders for reconstruction of Shrine of Hazrat Syed Noor-Shah Bagdadi (RA) at Kund Waltengoo and in response to the said tender notice, one Sajad Ahmad Khan S/o Late Haji Mohammad Sidiq Khan R/o Sheeraz Chowk, Khanyar, [the Principal of the petitioner (petitioner being as Attorney Holder)] states to have participated, therein and declared successful, and an allotment order consequently bearing No. MW/1824-27/TD dated 13.12.2016 issued by respondent No. 4 in favour of the said Principal. 3. It is being stated that in terms of order No. MW/14/TD dated 01.2017, respondent No. 4 directed the principal/petitioner to execute the work in question in accordance with the conditions mentioned therein. 4. 3. It is being stated that in terms of order No. MW/14/TD dated 01.2017, respondent No. 4 directed the principal/petitioner to execute the work in question in accordance with the conditions mentioned therein. 4. It is being next stated that during the execution of the allotted work, the respondents changed the final design of the proposed construction while incorporating various components/items asking the petitioner to stop the work at site. A communication dated 03.01.2017 is stated to have been addressed by respondent No. 6 to respondent No. 4 in this regard seeking authorization of respondent No. 4 for execution of outside items so that the work is completed well in time. 5. It is being further stated by the petitioner that in the month of July, 2017, he was directed to execute the work ignoring the earliest specifications while dismantling and clearing the pre-existing Shrine Structure so that the site is made available for execution of work with changed specifications and that consequently after doing the same, the petitioner raised the construction upto plinth level and also raised bills thereof, which partly came to be paid. 6. It is being next stated in the petition that upon change of specifications of the work allotted to the petitioner in terms of order dated 13.12.2016 pursuant to the directions of higher authorities, a revised Detailed Project Report (DPR) came to be submitted to the extent of Rs. 876.19 lacs in consequence whereof, a communication dated 16.12.2017 is stated to have been addressed by respondent No. 4 to respondent No. 2. The respondent No. 2 is stated to have addressed communication dated 01.01.2018 to respondent No. 1 in this regard requesting therein for approval of the revised Detailed Project Report (DPR) and arranging/release of requisite funds thereof. The said letter is stated to have been followed by another letter dated 22.01.2018 by respondent No. 2 to respondent No. 1 requesting therein for Administrative Approval for the revised estimates. 7. It is being next stated that in the meantime the petitioner was not allowed to carry on the work in question by the respondents compelling the petitioner to submit a representation to the respondents in this regard whereupon respondent No. 4 is stated to have addressed a communication dated 02.06.2018 to respondent No. 2 for grant of necessary instructions. No response thereto is stated to have been received or instructions by respondent No. 2. No response thereto is stated to have been received or instructions by respondent No. 2. 8. It is being further stated that respondent No. 1 issued thereafter Government Order No. 268-TSM of 2018 dated 19.09.2018 whereby sanction as came to be accorded to the administrative approval to the construction of Ziyarat Sharief Hazarat Noor Shah Wali Baghdadi (RA) at an estimated cost of Rs. 832.30 lacs as against the amount of Rs. 668,72,746/=. 9. It is being further stated by the petitioner that despite the accord of administrative approval dated 19.09.2018, the petitioner was not permitted to continue with the construction work having been raised upto plinth level and infact was informed that the work would be re-tendered, aggrieved whereof the petitioner states to have submitted a representation dated 27.09.2018 to the Advisor to the Governor as also to respondent No. 2 on 03.10.2018. The said representations, however, are stated to have yielded no results compelling the petitioner to file OWP No. 2021/2018 before this Court praying therein inter alia a writ of mandamus for commanding the respondents to issue formal order or to convey instructions regarding the further execution of the work pursuant to communication dated 22.01.2018 and administrative approval dated 19.09.2018 as also a writ of prohibition for prohibiting the respondents not to re-tender or allot the work in question through any other executing agency other than the petitioner as also by way of a writ of mandamus for commanding the respondents to release the pending admitted work done payments/amount in favour of the petitioner. In the application for interim relief accompanying the said petition an interim relief is stated to have been passed on 24.10.2018, directing the respondents to consider the representation of the petitioner forming (Annexure-P-11 to the petition) and till the decision is taken on the said representations, the subject matter of the petition was directed not to be retendered [the said OWP No. 2021/2018 stands dismissed for non-prosecution on 17.08.2022]. 10. It is being next stated by the petitioner that the representation of the petitioner in compliance to comply order dated 24.10.2018 came to be considered by respondent No. 4 and consequently, rejected in terms of order dated 06.05.2019. 11. It is being further stated by the petitioner that respondent No. 4 issued a fresh e-NIT No. DT/M and W/K/24 of 2019-20 dated 29.05.2019 for reconstruction of Ziyarat in question. 11. It is being further stated by the petitioner that respondent No. 4 issued a fresh e-NIT No. DT/M and W/K/24 of 2019-20 dated 29.05.2019 for reconstruction of Ziyarat in question. The petitioner states to have participated in the said tendering process and declared as successful and consequently allotted work in question vide order bearing No. MW/24/1213-16/TD dated 04.07.2019 for an approximate amount of Rs. 42,00,000/- and in terms of order No. MW/03/TD dated 07.2019 issued by respondent No. 4, the petitioner was directed to execute the work in question. 12. It is being next stated that soon after the petitioner started the execution of the work pursuant to allotment order dated 04.07.2019, respondent No. 7 stopped the petitioner from execution of the work alleging that the work in question is not being raised in accordance with DPR approved vide Government Order dated 19.09.2018. A communication in this regard dated 07.12.2019 is also stated to have been addressed by respondent No. 7 to respondent No. 4. 13. It is being further stated that respondent No. 3 vide letter dated 26.08.2020 addressed to respondent No. 2 directed him to take up the executed work strictly as per the vetted DPR and accord of administrative approval conveyed vide Order dated 19.09.2018. A communication dated 27.08.2020 is also in the meantime stated to have been addressed by respondent No. 6 to the petitioner for re-starting of the work in question strictly as per the standing allotment order issued in favour of the petitioner. The petitioner, however, states to have not been permitted by respondent No. 7 to carry on with the execution of the work compelling the petitioner to submit a representation dated 08.09.2020 before respondent No. 4. The said representation is stated to have been followed by two letters by respondent No. 6 to respondent No. 4 dated 20.09.2020 and 05.10.2020 for issuance of necessary appropriate orders in order to meet the demands of respondent No. 7. The petitioner further states to have submitted another representation to respondent No. 2 on 13.10.2020 with a request for looking into the matter and for issuance of a changed/revised order in accordance with the sanctioned DPR. 14. It is being next stated by the petitioner that in the meantime, respondent No. 5 addressed a communication dated 15.10.2020 to respondent No. 4 while forwarding the representation of the petitioner. 14. It is being next stated by the petitioner that in the meantime, respondent No. 5 addressed a communication dated 15.10.2020 to respondent No. 4 while forwarding the representation of the petitioner. A further communication dated 15.10.2020 is stated to have been addressed respondent No. 4 to respondent No. 6 directing him to proceed with the completion of the Shrine as per the parameters of the DPR vis-à-vis lay out/norms of the allotment strictly. Another communication dated 15.10.2020 also is stated to have been addressed by respondent No. 4 to respondent No. 2 informing him that the work allotted to the petitioner vide allotment dated 04.07.2019 had administrative and technical approval to the tune of Rs. 832 lacs as against fiscal allocation in CAPEX 2019 for an amount of Rs. 22 lacs being considerably low to meet up the standard specification stipulated in the DPR and also indicating therein the said letter that the locals of the area do not allow the petitioner to proceed with the construction on the ground that the work including structural items have to be done in accordance with the DPR. In terms of the said communication, opinion of respondent No. 2 is stated to have been sought while framing estimate to an amount of Rs. 273 lacs, besides, seeking an opinion that the subject matter of the work should be re-tendered or non BoQ items be assigned to the petitioner. A communication in response thereto is stated to have been addressed by respondent No. 5 to respondent No. 4 dated 27.10.2020 directing him to proceed in the case as per the rules/norms governing the matter and keeping in view the terms and the conditions of the allotment order issued in favour of the petitioner. 15. It is being next stated by the petitioner that respondent No. 6 also addressed a communication dated 11.11.2020 to respondent No. 4 forwarding a working estimate amounting to Rs. 544.46 lacs for construction of the Shrine in question to respondent No. 4 for approval bringing into his notice that the Administrative Department vide letter dated 26.08.2020 has issued strong directions to take up the execution of the working in question on priority basis in accordance with the DPR framed for the purpose and having been approved by the Government vide order dated 19.09.2018. 16. 16. It is being next stated by the petitioner that respondent No. 7 vide his representation dated 10.02.2021 to respondent No. 2 requesting therein that the work at site be restarted as per the actual sanctioned DPR which work had remain halted for more than a year. The said representation is stated to have been forwarded by respondent No. 5 vide letter dated 23.02.2021 to respondent No. 4. 17. It is being also stated that in the petition that the petitioner again submitted a representation dated 09.03.2021 before respondent No. 4 requesting therein for forwarding the revised estimate to respondent No. 2 for approval as the funds to the tune of Rs. 200 lacs stood allocated for the execution of the projects and that approval with regard to the items which were not in the original agreement but were necessary for the completion of the work as per approved DPR be accorded. Respondent No. 4 is stated to have addressed a communication in this behalf to respondent No. 2. 18. It is being further stated that the petitioner approached the respondents and requested them to issue amended/change work order in his favour, so that the work at site in question as per sanctioned DPR would commence, however, the respondents are stated to have not issued any change/amended work order in favour of the petitioner or else allowed the petitioner to execute the work at site. The petitioner states to have not been granted/issued order for amended work order despite stated to have approached the respondents time and again not only hampering the execution of the work in question but also affecting the interests of the petitioner, in that, the petitioner states to have engaged employees for execution of the work, installed equipments, dumped huge building material, having paid huge sums of money to the suppliers of raw material as also to the skilled/semi-skilled employees/laborers, besides, having availed huge financial assistance/loans for the purpose. The failure on the part of the respondents to issue amended work order in favour of the petitioner is stated to be violated his fundamental rights, besides, having adverse effect on his rights and interests. 19. Per contra, objections stand filed by respondent Nos. 1 to 6 to the petition, however, no response has been filed by respondent No. 7. 20. In the objections, respondent Nos. 19. Per contra, objections stand filed by respondent Nos. 1 to 6 to the petition, however, no response has been filed by respondent No. 7. 20. In the objections, respondent Nos. 1 to 6 while opposing the writ petition have stated that none of the legal, statutory a fundamental rights of the petitioner have been violated by the respondents and in absence thereof the petition is liable to be dismissed. 21. It is further stated in the objections that vide NIT dated 24.10.2016 the work in question was allotted to the Principal of the petitioner being for an amount of Rs. 73.66 lacs and that the work stands executed upto desired plinth level and that payment thereof stands made. 22. It is being further stated that in the year 2017 upon the insistence of the locals and the Auqaf Committee of the Shrine, the matter to reconstruction of the Shrine was placed before the Government functionaries for inclusion of several left over items, as a consequence whereof a Detailed Project Report(DPR) for an amount of Rs. 876.19 lacs was submitted to the Administrative Department for approval which came to be accorded in terms of Government Order dated 19.09.2018 for an amount of Rs. 832.30 lacs as per costs abstract including therein demolition, reconstruction, electrification, landscape development and construction of the boundary wall of the Shrine. Out of the said components, two components are stated to have been put to tendering process and out of them only one component, namely, plinth got completed. 23. It is being further stated that keeping in view of the administrative approval for reconstruction of the Shrine and in the light of approved allocation under CAPEX PLAN year wise, tender for super-structure were floated wherein the petitioner along with other bidders participated and was declared consequently successful resulting into issuance of allotment order dated 04.07.2019 amounting to Rs. 42.00 lacs. 24. It is being further stated that in the process of execution of super-structure component, objections were raised by the local Auqaf Committee that the reconstruction shall be carried out as per the specifications in the DPR. 25. It is being stated that a fresh DPR came to be prepared by the respondents mentioning revised estimates taking into consideration objections of the locals including the Auqaf Committee and the administrative approval for an amount of Rs. 832.20 lacs was accorded in terms of order dated 19.09.2018. 25. It is being stated that a fresh DPR came to be prepared by the respondents mentioning revised estimates taking into consideration objections of the locals including the Auqaf Committee and the administrative approval for an amount of Rs. 832.20 lacs was accorded in terms of order dated 19.09.2018. 26. It is being further stated that the construction of the Shrine as per the fresh DPR cannot be allotted to the petitioner as a particular component i.e. super structure stands already allotted to the petitioner, vide allotment order dated 04.07.2019 and the rest of the components as per approved allocation and subject to the availability of the funds are required to be tendered separately wherein the petitioner will have a right to participate and if found successful would be allotted the work in respect of the particular component. 27. It is being further stated in the objections that the petitioner voluntarily participated in the tendering process pursuant to NIT dated 29.05.2019 and upon having been found successful was allotted work vide allotment order dated 04.07.2019 amounting to Rs. 42 lacs for the work of super structure as per the DPR, being the second component in the process of construction in question. 28. It is being reiterated that the respondents intervened during the process of execution of work by the petitioner in respect of the component allotted to the petitioner vide order dated 04.07.2019 after the locals Auquaf Committee objected to the work under taken by the petitioner who wanted the petitioner to execute the work as per specifications, approved DPR and architectural design. The respondents are stated to have time and again called upon the petitioner to execute the work strictly as per specifications contained in the allotment order. 29. It is being further stated in the objections that the respondents invited tenders for the approved allocation of the DPR only as per releases in CAPEX PLAN year wise and that complete DPR amounting to Rs. 822. 30 lacs cannot put tender in full keeping in view the budget allocation. It is reiterated in the objections that the component wise tenders will be advertised only as per the above allocations under CAPEX PLAN and unless the said components are not put to tender, the petitioner shall have no claim over the complete DPR amounting of Rs. 832.30 lacs. Heard learned counsel for the parties and perused the record. 30. It is reiterated in the objections that the component wise tenders will be advertised only as per the above allocations under CAPEX PLAN and unless the said components are not put to tender, the petitioner shall have no claim over the complete DPR amounting of Rs. 832.30 lacs. Heard learned counsel for the parties and perused the record. 30. It is not in dispute that the petitioner has been allotted initially the work in question in terms of allotment order dated 13.12.2016 pursuant to NIT dated 26.10.2016 amounting to Rs. 73.66 lacs upto the plinth level. It is also not in dispute that upon inclusion of various left over items in the execution of reconstruction work of the Shrine and its maintenance, the official respondents prepared a fresh DPR amounting to Rs. 876.19 lacs approved vide order dated 19.09.2018 amounting to Rs. 832.30 lacs which approval included demolition, reconstruction, electrification, landscape development and the construction of the boundary wall. It is also not in dispute that out of the said components two were put to process of tendering. It is also not in dispute that the tenders for super structure for the reconstruction of the Shrine in question was issued and the petitioner participated therein in the said tendering process along with the other bidders and was declared successful resulting into issuance allotment order dated 04.07.2019 for an amount of Rs. 42 lacs. 31. The claim lodged by the petitioner in the petition, seemingly, is vis-à-vis all the components for which administrative approval stands granted in terms of order dated 19.09.2018 amounting to Rs. 832.30 lacs, under the cover and shade of the allotments made in favour of the petitioner pursuant to the allotment orders dated 13.12.2016 and 04.09.2019. In presence of specific stand of the respondents that the petitioner has been allotted the work for raising of super structure being a particular component in terms of order dated 04.07.2019 and that rest of the components would be put to tendering process in due course of time subject to the availability of the funds wherein the said tender process the petitioner, if eligible can also participate, the petitioner cannot, in law, claim to execute works of the said un-tendered components under the guise of the allotment orders issued in his favour. 32. 32. The petitioner is bound to carry out the execution of the works strictly under in terms of the works advertised and allotted to him and under the cover of the said works allotted to him, the petitioner cannot delay the execution of the works on the premise that the rest of the remaining work components are entitled to be executed by him. The right claimed by the petitioner in the petition, in respect of the said components in absence of a tending process inasmuch as a formal allotment is not legally sustainable. The petitioner cannot claim the execution of the said works as a matter of right, merely, on basis of the allotments made in his favour in the year 2016-17. The petitioner cannot said to have any right much less one recognized by law to lodge such a claim which ex facie is not tenable. 33. The petition in the aforesaid backdrop is grossly misconceived and, as such, entails dismissal. Accordingly, petition is dismissed and interim direction, if any, shall stand vacated.