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2025 DIGILAW 166 (JK)

New G. Q. Constructions v. Ut of J&K

2025-03-26

RAJNESH OSWAL

body2025
JUDGMENT : 1. The petitioner has filed this petition for grant of following reliefs: I. Writ of Certiorari, for quashing the letter (order impugned) bearing No. PHEDC/522-27 dated 27.04.2022, forming annexure-I to this writ petition. II. Mandamus, commanding the respondents to release the unpaid amount to the petitioner to the extent of Rs 15,09,652/- (Fifteen lacs Nine Thousand Six Hundred Fifty Two only) on account of execution of the work along with interest at Rs 12% with costs of litigation of Rs 2.00 lacs on account of causing mental agony and inconvenience to the petitioner. 2. It is stated that the petitioner was allotted the work for construction of double storied office building for PHE Division, Chadoora, for an estimated cost of Rs.67,36,000/. The work was to be completed within a period of six months from the date of issuance of allotment order. The petitioner claims to have started the execution of the work but during this process, various impediments/obstructions came to the fore including law and order problem due to intervention of the locals, as result of which there was delay in the execution of the work and the same was attributable to the respondents only. It is stated that the respondents also raised dispute over the rates already settled between the parties and under that pretext, they have withheld the amount due to the petitioner on account of execution of the work. The petitioner claims to have made various representations to the respondents but without any result. It is stated that the petitioner has executed the work to the extent of Rs.60,09,652/, out of which Rs.45.00 lacs have already been released after verification of the work and rest of the amount due to the petitioner to the tune of Rs.15,09,652/ is still outstanding. It is claimed that the petitioner has executed 96% of the work and the remaining work to the extent of Rs.7,26,348/ is still to be executed, which the petitioner is willing to execute on the rates already settled by the parties in terms of allotment order dated 30.01.2021. It is also stated that the respondents instead of releasing the amount in favour of the petitioner, vide order dated 27 th April, 2022, which is impugned in this petition, are forcing the petitioner to start the work. 3. It is also stated that the respondents instead of releasing the amount in favour of the petitioner, vide order dated 27 th April, 2022, which is impugned in this petition, are forcing the petitioner to start the work. 3. The petitioner has impugned order dated 27 th April, 2022, inter alia, on the following grounds: (I) That the petitioner is incapacitated to start the remaining work at the estimated cost of Rs.7,26,348/ but the respondents are compelling him to execute the remaining work at a lower cost/excess work. (II) That in terms of mandate of condition No.52 of the NIT, the petitioner has already voiced his grievance before the respondents, as such, the Executive Engineer ought to have referred the case and brought it to the notice of the Chief Engineer but he is threatening the petitioner to blacklist him, which is a very serious action on the part of the respondents. 4. The respondents have filed their response stating therein that as per the terms and conditions of e-NIT, the petitioner was supposed to complete the building with second slab and CGI roofing sheets over timber truss within the stipulated time but he miserably failed to complete the said work as per the sanctioned estimate despite repeated reminders issued through phone as well as notices served from time to time by the concerned Sub-Division and Divisional office. It is stated that a final reminder was issued to the petitioner on 27.04.2022 (which is impugned by the petitioner in this petition), in terms of which he was directed to start the work within three days. The petitioner did not bother to execute the work and, accordingly, keeping in view the urgency involved, the matter was taken up with the Superintending Engineer, Hydraulic Circle, Budgam, vide letter No.PHEDC/1137 dated 25.05.2022, who, in turn, conveyed his instructions vide letter No.SE/HYD/CS/BUD/1127-28 dated 27.05.2022, to the extent of inviting fresh tenders for execution of the work at the risk and cost of the agency and also forfeit all deposits, CDRs etc. of the defaulting agency. It is stated that vide letter dated 25.06.2022, the aforesaid directions of the Superintending Engineer were conveyed to the contractor (petitioner herein). of the defaulting agency. It is stated that vide letter dated 25.06.2022, the aforesaid directions of the Superintending Engineer were conveyed to the contractor (petitioner herein). It is also averred that as per the payment clause of the allotment order, the payments are to be made to the contractor only against the work done or after completion of work in all respects as per the specifications after deduction of necessary taxes under rules and in the event of failure on the part of the contractor to complete the contract, the authority has the right, without prejudice to the remedies available to the Government under any law for the time being in force, to adopt all or any of the following courses i.e. rescind the contact, measure up the work executed by the contractor and to take such part thereof as unexecuted out of his hand and get the same executed/ completed through alternate means/agency/contractor at the risk and cost of the original contractor. It is also averred that pursuant to the directions passed by this Court, the claim of the petitioner was duly considered and the same was rejected vide order dated 16 th September, 2023. 5. Mr. Makroo, learned senior counsel appearing for the petitioner, has argued that the delay in execution of the work was only because of the law and order problem and also for the reason that the respondents were compelling the petitioner to execute the work at lower rates. He has further submitted that the petitioner has already impugned the order dated 16.09.2023 in a separate writ petition. 6. Per contra, Mr. Ilyas Laway, learned counsel for the respondents, has argued that when despite repeated reminders, the petitioner did not start/complete the remaining work, the department decided to rescind the contract and it was decided to invite fresh tenders for execution of the remaining part of the work. He has further argued that in terms of Clause 52 of the NIT, the dispute if any between the parties is required to be decided by the Arbitrator. 7. Heard and perused the record. 8. The petitioner has impugned the order dated 16.09.2023 through the medium of a separate writ petition and any finding by this court shall cause prejudice to either of the parties, in a petition wherein the petitioner has assailed the order dated 16.09.2023. 9. 7. Heard and perused the record. 8. The petitioner has impugned the order dated 16.09.2023 through the medium of a separate writ petition and any finding by this court shall cause prejudice to either of the parties, in a petition wherein the petitioner has assailed the order dated 16.09.2023. 9. In view of the above, this Court does not deem it proper to show indulgence in the matter and dispose of this writ petition as having been rendered infructuous due to the subsequent writ petition preferred by the petitioner.