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2023 DIGILAW 516 (JK)

Ali Mohd, S/o Sh. Abdul Sittar v. State of J&K

2023-09-15

MA CHOWDHARY

body2023
JUDGMENT : 1. Petitioner through the medium of this petition filed under Article 226 of the Constitution of India, seeks a direction/order to the respondents in the nature of Writ of Certiorari quashing Office Order No. 827-33/SQ dated 19.08.2008 issued by the respondent No. 10-Deputy Commissioner, Ramban, with further Writ of Mandamus, commanding the respondents to pay an amount of Rs. 4,20,789/-(Rupees Four Lacs, Twenty Thousand, Seven Hundred and Eighty Nine) on account of the expenses incurred by the petitioner for construction of four shops at Ramban, which had been demolished by the respondent No. 10 and further an amount of Rs. 1,58,600/-(Rupees One Lac, Fifty Eight Thousand and Six Hundred) on account of damages in respect of the Shuttering material consisting of Ballies, Phattas, Tin Sheets, Iron Girders, Vibrator, Sintex Water Tanks, Cement etc. 2. The petitioner has asserted in his petition that respondent No. 5 Executive Engineer, Local Bodies Division-II, Gandhi Nagar, Jammu invited tender vide NIT No. 6-LBJ of 2008 dated 10.08.2008 for construction of four shops near Town Park of Municipal Committee, Ramban; that the petitioner being a registered “B” Class contractor and being eligible also, submitted a tender, which was accepted and, accordingly, he was allotted the construction of the above mentioned four shops by the respondent No. 5 vide No. LB/Tech./I/II/2008/685-89 dated 02.06.2008 at an estimated value of Rs. 4.60 lacs (Rupees Four Lacs and Sixty Thousand); that the petitioner had been asked to start the work within seven days from the date of issue of the allotment order dated 02.06.2008 and that he had started execution of construction work on 10.06.2008 and raised four shops strictly as per the specification given by the respondent Nos. 5 to 9, after demarcation on spot by respondent Nos. 6 and 7; that after the construction of the plinth, the brick work was started and was completed and shuttering was erected for laying the slab; that the petitioner as per the directions from respondent Nos. 6 to 9, had taken photographs of the shuttering, iron (saria work) etc. before laying the slab to satisfy the officers that the construction work was done strictly as per the specification; that after pressing into service of men and machinery, the lintel work was completed on 19.08.2008 at 4 P.M. 3. 6 to 9, had taken photographs of the shuttering, iron (saria work) etc. before laying the slab to satisfy the officers that the construction work was done strictly as per the specification; that after pressing into service of men and machinery, the lintel work was completed on 19.08.2008 at 4 P.M. 3. The petitioner has alleged that to his utter surprise, at about 5.30 P.M on 19.08.2008, a police contingents came on spot and informed the petitioner that as per the direction of respondent No. 10, the building of four shops was required to be demolished. The Tehsildar, Ramban also came on spot and after hiring labourers and JCB, the structure raised by the petitioner was demolished and the petitioner had taken photographs of demolition as well; that the shuttering material used in the construction was also destroyed and that the total cost of the said material had been estimated to Rs. 39,000/-(Rupees Thirty Nine Thousand) by its owner, namely, Sham Singh Raju, whereas the costs of girders had been worked out by the Sh. Bhasin & Company at Rs. 42,000/-(Rupees Forty Two Thousand), which had also been paid by the petitioner; that about 40 (forty) bags of ACC Cement stocked by the petitioner, were also destroyed, causing loss of Rs. 13,600/-(Rupees Thirteen Thousand and Six Hundred) on this count; that the Vibrator of the cost of Rs. 16,000/-(Rupees Sixteen Thousand) owned by the petitioner had also been taken away and the petitioner had also suffered a loss of Rs. 40,000/-(Rupees Forty Thousand) on account of rent of the Tin Sheets for laying lintel, besides a loss of Rs. 8,000/-(Rupees Eight Thousand) on account of destruction of construction tools like Fixes, Shovels, Karahies, Water Tanks etc. 4. The petitioner claimed that the respondent Nos. 6 and 7 have prepared on account bill (CC 1st) in the amount of Rs. 2,80,789/-(Rupees Two Lacs, Eighty Thousand, Seven Hundred and Eighty Nine) in respect of part construction of the shops in question and finally, it was prayed that besides the amount of the bill of Rs. 2,80,789/-(Rupees Two Lacs, Eighty Thousand, Seven Hundred and Eighty Nine) on account of construction of shops, the petitioner was also entitled to an amount of Rs. 1,40,000/-(Rupees One Lac and Forty Thousand) due to the loss suffered on account of costs incurred by him in respect of shuttering and laying of slab works. 2,80,789/-(Rupees Two Lacs, Eighty Thousand, Seven Hundred and Eighty Nine) on account of construction of shops, the petitioner was also entitled to an amount of Rs. 1,40,000/-(Rupees One Lac and Forty Thousand) due to the loss suffered on account of costs incurred by him in respect of shuttering and laying of slab works. The petitioner alleged that the respondents despite many reminders, have failed to make payment and hence, this petition for commanding the respondents to pay an amount of Rs. 5,79,389/-(Rupees Five Lacs, Seventy Nine Thousand, Three Hundred and Eighty Nine) on account of work done and damages caused to the construction material used by the petitioner and the tools etc, alongwith interest @ 15% p.a. 5. Pursuant to notice, the respondent Nos. 4 to 9 have fairly admitted the allotment of execution work for construction of four shops by the petitioner in response to NIT issued by the respondent No. 5-Executive Engineer, Local Bodies, Division II, Jammu and also the preparation of the bill of construction work in the amount of Rs. 2,80,789/-(Rupees Two Lacs, Eighty Thousand, Seven Hundred and Eighty Nine), however, they had denied the claim of the petitioner for want of knowledge with regard to damages suffered by him due to demolition under the orders of respondent No. 10-Deputy Commissioner, Ramban. 6. Respondent No. 10 in his response had raised certain issues with regard to the title of the land, not having been transferred in favour of the Municipal Committee, Ramban for whom the shops in question had been raised on the State Land. He has pleaded to justify his demolition order in question, as the construction had been prohibited to be carried out by the then Deputy Commissioner, Doda having jurisdiction in the matter vide Order No. 149-52/DMR dated 11.06.2007. It has been further pleaded that the Municipal Committee had no right to raise the construction of four shops, which were demolished in view of having been raised against express orders passed by the Deputy Commissioner, Doda and the title of the land not having been transferred to the Municipal Committee, Ramban. 7. It has been further pleaded that the Municipal Committee had no right to raise the construction of four shops, which were demolished in view of having been raised against express orders passed by the Deputy Commissioner, Doda and the title of the land not having been transferred to the Municipal Committee, Ramban. 7. Learned counsel for the petitioner has vehemently argued that the petitioner had been allotted the construction work of four shops at Ramban for the local Municipal Committee in response to NIT issued by the respondent No. 5-Executive Engineer, Local Bodies Division-II, Jammu; and that the petitioner had constructed the shops structure and laid the slab thereon on 19.08.2008 and this structure was demolished under the orders of respondent No. 10 vide impugned order dated 19.08.2008 at 5.30 P.M. He has drawn the attention of this Court towards the photographs placed on File, showing the construction having been raised and then demolished. He has further argued that the official respondents had prepared the bill with regard to construction raised by the petitioner in the amount of Rs. 2,80,789/-(Rupees Two Lacs, Eighty Thousand, Seven Hundred and Eighty Nine) to which the petitioner is entitled, besides damages of Rs. 1,40,000/-(Rupees One Lac and Forty Thousand), on account of damages to the construction material and machinery. 8. Learned counsel for the respondent Nos. 3 to 9, ex-adverso, admitted the claim of the petitioner with regard to issuance of NIT by the respondent No. 5, allotment of work in favour of the petitioner, execution of construction of the shops by the petitioner and demolition of the raised construction under orders of the Deputy Commissioner. Learned counsel for the said respondents has not disputed, rather admitted fairly, the bills worked out for the construction made by the petitioner, however, he has disputed the other claim with regard to damages caused to the petitioner with regard to construction material and machinery involved therein. He has further submitted that the land, where the shops had been constructed, had been recommended to be transferred to the Municipal Committee by the Deputy Commissioner, Doda and having possession over the land, the respondents had decided to raise a shopping complex consisting of four shops in the land. However, the Deputy Commissioner, Ramban had demolished the structure on the ground that the title of the land was not in favour of the answering respondents. 9. However, the Deputy Commissioner, Ramban had demolished the structure on the ground that the title of the land was not in favour of the answering respondents. 9. Learned counsel for the respondent No. 10-Deputy Commissioner, Ramban has, however, argued that the respondent Nos. 2 to 9 had no right, whatsoever, to raise construction over the Nazool/State land without it being transferred to them. He has further argued that the Deputy Commissioner, Ramban had rightly passed the order impugned dated 19.08.2008, whereby the raised structure was ordered to be demolished. He has, however, not submitted anything with regard to monetary claim of the petitioner for raising the construction in response to the allotment order made by the Local Bodies Department. 10. Heard, perused and considered. 11. From the pleadings of the parties and submissions made by the learned counsel for the parties, it is crystal clear that the petitioner had been allotted the work of construction of four shops for Municipal Committee, Ramban, which he had raised by laying the slab on 19.08.2008, however, the said structure was demolished under the orders of respondent No. 10. The respondents from the Local Bodies Department had worked out the bill with regard to construction made by the petitioner for an amount of Rs. 5,79,389/-(Rupees Five Lacs, Seventy Nine Thousand, Three Hundred and Eighty Nine). 12. So far as the impugned order dated 19.08.2008 issued by the respondent No. 10 is concerned, the petitioner has no right, whatsoever, to seek quashment of this order, which seems to have been passed by the respondent No. 10 in its official/statutory capacity and the petitioner had no right whatsoever with regard to the land whereon the shopping complex had been raised by the petitioner for respondent No. 8-Municipal Committee, Ramban. 13. Essentially, it was a dispute regarding title of the land, whether the same had vested in the Municipal Committee, Ramban or not, being the Nazool/State land, but the petitioner had nothing to do with the title of the land and he had raised construction in obligation to his contractual liability after his tender having been duly accepted in response to the NIT issued by the respondent No. 5 for construction of the shops. The petitioner had constructed the shops and the concerned respondent had worked out the bill in the amount of Rs. The petitioner had constructed the shops and the concerned respondent had worked out the bill in the amount of Rs. 2,80,789/-(Rupees Two Lacs, Eighty Thousand, Seven Hundred and Eighty Nine), payable to the petitioner. 14. So far as this amount is concerned, it has been fairly admitted by the respondents that the petitioner is found entitled to the same. So far as the other claim for an amount of Rs. 1,40,000/-on account of loss due to construction material/machinery and shuttering etc. is concerned, the same facts being disputed, cannot be gone into by exercising a writ jurisdiction by this Court. The petitioner shall be well advised to have recourse to the legal remedy available to him in this behalf. 15. For the aforesaid reasons and observations made hereinabove, the petition is disposed of in the following terms:- (i) The petition to the extent of seeking quashment of order No. 827-33/SQ dated 19.08.2008 issued by the respondent No. 10 is dismissed; (ii) The respondent Nos. 3 to 9 are directed to pay an amount of Rs. 2,80,789/-(Rupees Two Lacs, Eighty Thousand, Seven Hundred and Eighty Nine), which has been billed for by the respondents for construction of 4 (four) shops in response to NIT issued by them in favour of the petitioner. Since the aforesaid admitted amount has been withheld by the respondents since the year 2008, the petitioner, who was a contractor, had suffered losses of not having this money to further invest in his vocation. He is found entitled to the payment of interest on this amount as well. The aforesaid amount is held to be recoverable by the petitioner from the respondents alongwith simple interest @ 10% p.a from the date of completion of the work, i.e., 19.08.2008 till liquidation of the entire amount. Hence, the petition to this extent is allowed. (iii) The claim of the petitioner with regard to having suffered losses on account of construction material/machinery etc. cannot be granted in this petition, as the disputed question of facts cannot be decided under the writ jurisdiction of this Court. The claim of the petition to this extent is, thus, rejected, however, petitioner can work out other remedies, in accordance with law. No order as to costs.