Research › Search › Judgment

J&K High Court · body

2023 DIGILAW 617 (JK)

Mukesh Singh v. Union Territory of J&K

2023-10-12

SINDHU SHARMA

body2023
JUDGEMENT 1. The petitioner, who is "A" Class Government contractor by profession, claims to have executed the construction work which was allotted to him after participating in the tendering process issued by the respondents. That pursuant to work order, the petitioner has executed the construction of road works of improvement/ restoration of Rohi Minor breached at RD 900-1200M by way of plugging at various places, plugging of leakage between RD 7000-7100 M of D-9 by way of concreting and restoration of damages/plugging of leakage and cuts of Katyal Minor of D-10A RD 2300-2600M. 2. The Superintending Engineer, Hydraulic Circle, Jammu in reference to the letter No. JID/II/2320 dated 11.12.2019 vide his communication dated 13.12.2019 accorded sanction/approval for execution of the aforesaid work. 3. The said work was executed and completed by the petitioner well within time and up to the satisfaction of the respondents, however, an amount to the tune of Rs. 10,58000/- is to be paid to the petitioner for the execution of the aforementioned work. The respondents were avoiding the payment to the petitioner on one pretext or the other. Thereafter, on 05.03.2021 the petitioner served a legal notice upon the respondents through his counsel for release of the amount and upon this, an amount to the tune of Rs. 4,25,000/- was released out of the total amount of Rs. 10,58,000/- 4. The petitioner submits that although he has executed the aforesaid work but the payment due to him for successful execution of the work has not been made to him till date. The respondent No. 3 vide communication dated 14.07.2021 admitted that the said work was executed by the petitioner and further admitted the work done claim of the petitioner to the tune of Rs. 10,47,000/-. It is admitted by respondent No.3 that out of Rs. 10,47,000/-, an amount to the tune of Rs. 4,25,000/- already stands released and an amount to the tune of Rs. 6,22,000/- is still outstanding. 5. The grievance of the petitioner is that even though he has successfully executed the works allotted to him to the entire satisfaction of the respondents but the respondents, despite admitting their liability to make payments, have not released amount due to him till date. 6. 6,22,000/- is still outstanding. 5. The grievance of the petitioner is that even though he has successfully executed the works allotted to him to the entire satisfaction of the respondents but the respondents, despite admitting their liability to make payments, have not released amount due to him till date. 6. The respondents in their objections submitted that the works had been executed by the petitioner vide approval issued by SE Hydraulic Circle Jammu's No. SE/Hyd/DB/7452 dated 13.12.2019 and SE/Hyd/DB/7451, dated 13.12.2019 and these are the contractual matters and the claims can be settled only in the light of the terms and conditions of the allotment order. They further submitted that the work which had been claimed executed is subject to verification, the verification committee had also been constituted by Chief Engineer (I&FC) Jammu vide No. IFCJ/Legal/5285-88, dated 17.06.2023 to verify the work done claim in the light of the terms and conditions of the contract. They further submitted that the verification stands accomplished by the committee and the report had been submitted to the Chief Engineer (I&FC), Jammu for onwards submission to the Administrative Department for final disposal of the claim. However, the further payment could not be made to the contractor because of non- availability of Accord of Administrative Approval. 7. As per these objections, an amount of Rs. 6,22,000/- is yet to be paid to the petitioner and the only reason for denial of payment of the amount is because of non-availability of Accord of Administrative Approval. 8. The respondents have neither denied the execution of works nor their liability to make the payment. They have also admitted that the works were executed but according to them, these works were undertaken by the petitioner without the availability of funds. The petitioner, according to him, had taken a calculated risk by executing these works on his own. This submission cannot be accepted in view of the fact that the respondents allowed the petitioner to execute the work. The respondents have annexed details of the claims of the petitioner for works allotted to him with their objections. In terms of the same, the petitioner has executed the work and the amount due to the petitioner for the work executed by him is of Rs. 6,22,000/- but payment of only Rs. 4,25,000/- has been made to him. 9. The respondents have annexed details of the claims of the petitioner for works allotted to him with their objections. In terms of the same, the petitioner has executed the work and the amount due to the petitioner for the work executed by him is of Rs. 6,22,000/- but payment of only Rs. 4,25,000/- has been made to him. 9. The only issue which is to be considered is if there was no administrative approval, technical sanction or funds available with the respondents, then how and why the works were executed, and by whom in the absence of the approval, sanction and funds. Though any contractor executing the work on behalf of the official respondents of the department undertakes the same on the firm belief that the work is being undertaken by him on the asking of respondents after its due approval and completion of all the formalities. It is not for the contractor to consider whether the administrative approval, technical sanction and other formalities have been completed or not before undertaking any work. In fact, it is for the respondents to explain how these works were executed in absence of the necessary approval and sanction. 10. The respondents have admitted the execution of works as well as liability and details have also been provided by them, they cannot avoid their liability to pay by taking refuse in a technical sanction and administrative approval but despite that they are denying the same on account of administrative approval. This plea is not available to them as it was their domain to regarding grant of approval as well as technical sanction was given. They cannot raise this plea at this stage to defeat the claim of the petitioner. 11. In M/s Surya Construction v. The State of U.P. in Civil Appeal No. 2610/2010 dated 02.05.2010 it is held that it is well settled, even in the realm of contract, this Court can interfere under Article 226 of the Constitution of India as held in ABL International Ltd. & Anr. v Export Credit Guarantee Corporation of India Ltd. & Ors. ( 2004 (3) SCC 553 ). The State while entering into contract or agreement with private individuals has to act in just, fair and reasonable manner. The contractual obligations of the State coexist with the constitutional obligations. v Export Credit Guarantee Corporation of India Ltd. & Ors. ( 2004 (3) SCC 553 ). The State while entering into contract or agreement with private individuals has to act in just, fair and reasonable manner. The contractual obligations of the State coexist with the constitutional obligations. The work being completed long back and there being no dispute on amount and payment being admitted by the respondents, same cannot be denied when the work stands executed. 12. The respondents have acted arbitrarily, unreasonably and unfairly and in this case as the liability is admitted, therefore, the petitioner is held entitled to the payment of admitted amount for the work executed by him. 13. In view of the aforesaid reasons, this petition is allowed and the respondents are directed to pay the petitioner balance amount of Rs. 6,22,000/- on account of the works executed by the petitioner along with interest @ 6% from the date payment has become due to the petitioner.