Serial No. 112

Supplementary-1 Cause List

HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT SRINAGAR

LPA No. 252/2024

CM No. 6081/2024

CM No. 6082/2024

Dated: 7

th

of October, 2024.

Union Territory of Jammu & Kashmir and Ors.

… Appellant(s)

Through: -

Mr Bikramdeep Singh, Dy. AG with

Ms Nowbahar Khan, Assisting Counsel.

V/s

M/S JK Water Mission Zewan & Anr.

… Respondent(s)

CORAM:

Hon’ble Mr Justice Atul Sreedharan, Judge

Hon’ble Mr Justice Rajesh Sekhri, Judge

(JUDGMENT)

Atul Sreedharan-J (Oral):

01. The present Letters Patent Appeal has been filed by the UT-

Government, which is aggrieved by the Order and Judgment dated 5

th

of

July, 2022 passed by the learned Single Judge in the Writ Petition filed by

the Petitioners/ Respondents herein bearing OWP No. 393/2018 (attached

as Annexure-I to the appeal). Besides, an application for condonation of

delay of 756 days has also been filed, which is CM No. 6081/2024.

02. The present case is identical to another case which was decided

by a Coordinate Bench of this Court in LPA No. 121/2023 (Union Territory

of Jammu & Kashmir and Ors. v. Mohammad Afzal Reshi). In that case,

after the contractor had completed his liability under the contract, an

amount running into Rs. 20.97 lacs along with interest @ 6% from the date

on which the payment became due to be paid within a period of two months

LPA No. 252/2024

CM Nos. 6081/2024 & 6082/2024

Page 2 of 9

from the date of the Order was appealed against by the Union Territory-

Government. While dismissing that LPA and imposing a costs of Rs.9.00

lacs upon the Union Territory-Government to be paid to the Respondent of

that case, this Court had held that the contractor in that case indisputably

completed the work assigned to him and before the learned Single Judge,

the only objection that was taken by the Union Territory was that it did not

have funds to pay the contractor. The contention of the Union Territory was

dismissed by the learned Single Judge and the Petition was allowed. Inter

alia, the learned Single Judge in that case had observed that the case of

Mohammad Afzal Reshi (Petitioner in OWP No. 1641/2016) was not a

solitary case but that the learned Single Judge had come across several

other cases where contractors were approaching the High Court only for the

payment of their rightful dues and there before the High Court, the Union

Territory’s only contention would be that they did not have funds to pay the

contractor. After the Order was passed by the learned Single Judge in that

case, a Review Petition was also preferred, which was also dismissed and a

Contempt case was still pending against the Union Territory.

03. In this particular case, the facts are similar. Before the learned

Single Judge in this case, the Petitioners-M/S JK Water Mission, Zewan

and Anr. had approached the Writ Court for a ‘Writ of Mandamus’ against

the Union Territory for payment of admitted outstanding amount of Rs.

12.55 lacs along with interest @ 12.5 % from the date the amount became

due to the Petitioners on account of construction of machine drilled hand

pump wells and other allied works at different places at the instance of the

Respondents. The learned Single Judge referred to the Objections filed by

the Union Territory and reproduced Paragraph No.2 of the Objections in his

Order, which, for the sake of convenience, is also being reproduced

hereinbelow and the same reads as:

“It is a fact that an amount of Rs.42.81 lacs in respect of

the petitioner No.01 and Rs.78.74 lacs in respect of petitioner

No.02 was pending due to shortfall of funds, but an amount of

Rs.66.00 lacs were released in favour of the petitioner No.02

during the year 2017”.

LPA No. 252/2024

CM Nos. 6081/2024 & 6082/2024

Page 3 of 9

04. Thereafter, the learned Single Judge also reproduced the

averment made by the Union Territory in Paragraph No.3 of their

Objections which reads as hereunder:

“It is further submitted that rest outstanding payments of

the petitioners would be released to the petitioners on

availability of funds under the proper head of account”.

05. The learned Single Judge arrived at the finding that from the

Objections filed by the Union Territory, it was explicit and clear cut that the

Union Territory had admitted the liability towards the Petitioners and,

therefore, on the instance of the Petitioners’ Counsel, took up the Petition

for disposal at the initial stage by way of a direction to the Respondents to

release the outstanding amount without any further delay, along with

interest at the current bank rate. The learned Single Judge recorded that the

Respondents were not averse to the disposal of the Petition, but had

submitted that the outstanding amount would be released in favour of the

Petitioners as and when funds are available with the Respondents.

Thereafter, the learned Single Judge, on the basis of the admission by the

Union Territory towards the admitted liability in favour of the Petitioners,

directed the Respondents/ Appellants herein to release the outstanding

amount of liability to the Petitioners within a period of two months from the

date a copy of the Order was served upon the Respondents, along with an

interest @ 6% from the date it accrued to the Petitioners till the amount is

actually released/ paid. This Order was passed by the learned Single Judge

on 5

th

of July, 2022. The Order was passed on Board, in the presence of the

then learned Deputy Advocate General for the Union Territory, thus, the

Union Territory was in knowledge of the said Order having been passed

against them and also their liability to act in accordance with the said Order.

06. Before this Court, in the application for condonation of delay,

the UT-Appellants have stated in Paragraph No.2 that the Department did

not receive a copy of the impugned Order dated 5

th

of July, 2022, but

received a copy of the Contempt Petition on 20

th

of December, 2023,

wherein the allegation of disobedience of the Order passed by the learned

LPA No. 252/2024

CM Nos. 6081/2024 & 6082/2024

Page 4 of 9

Single Judge was alleged. Thus, from the averments made in Paragraph

No.2 of the application seeking condonation of delay, it is clear that no

action was taken by the UT-Appellants for one year and five months after

the Order was passed by the learned Single Judge and that they sprang into

action only after they received the notice in the Contempt Petition on 20

th

of

December, 2023, being CPOWP No. 497/2023. In Paragraph No.3 of the

application for condonation of delay, the Union Territory-Appellants have

stated that the file was, accordingly, processed and records were sought

from the Division concerned, who initially submitted a report on 23

rd

of

February, 2024, whereafter, the file was subsequently processed through e-

office on 26

th

of February, 2024 and forwarded to the Administrative

Department. Without giving any precise reasons for the delay of 756 days,

the Union Territory has desired that the delay be condoned because the

Order and Judgment passed by the learned Single Judge was arrived on the

basis of fraudulent admissions made by the then Officers concerned, who

have now been charge sheeted after the discovery/ knowledge of the fraud

committed by the said Officers with malafide intentions. It has been stated

that the Department, immediately, got the necessary sanction from the

Department of Law, Justice and Parliamentary Affairs for availing

appropriate legal remedy. Thus, the learned Counsel appearing on behalf of

the Union Territory has submitted that the Order and Judgment passed by

the learned Single Judge was on the basis of fraudulent admissions made by

the then officers concerned. However, it is an admitted position of the

Union Territory that no FIR has been registered till date for the offence

under Section 420 and that only administrative action has been initiated

against the officers concerned.

07. In order to comment upon the conduct of the Union Territory,

this Court feels it essential to allow the application for condonation of delay

and reflect upon the merits of the appeal itself to see whether any

interference is called for by this Court against the Order passed by the

learned Single Judge. Therefore, the application seeking condonation of

LPA No. 252/2024

CM Nos. 6081/2024 & 6082/2024

Page 5 of 9

delay in filing the main appeal is allowed and the delay is condoned. CM

No. 6081/2024 shall stand disposed of, accordingly.

08. Coming to the merits of the main appeal, the learned Counsel

appearing for the Union Territory has referred to Page No.35, which is the

articles of charge, whereby the charges have been framed against Mr

Imtiyaz Kirmani, the then Executive Engineer, PHE, Ground Water

Division, Srinagar, vide articles of charge dated 25

th

of September, 2024 on

the ground that the Respondents herein have approached the High Cout for

seeking their claim of Rs.33,44,852/- and Rs. 66,23,046/- for the execution

of various works. The charge was to the effect that the tenders for the work

were floated without following codal procedure, i.e., without administrative

approval, technical sanction and without availability of funds, thus,

violating Rule 93 of the Financial Code and Rule 136(1) of the GFR, which

amounted to dereliction of duty and causing loss to the State exchequer.

Similarly, the articles of charge have also been placed on Mr Javaid Ahmad

Khan, the then Executive Engineer, PHE, Ground Water Division, Srinagar,

Mr Rashid Ahmad Dar, the then Superintending Engineer, PHE, Mech.

Circle (North), Srinagar, Mr Gh. Rasool Zargar, who was the then Chief

Engineer, PHE Department, Kashmir and lastly, on Mr Abdul Wahid, the

then Chief Engineer of the PHE Department, Kashmir. All these persons

have since retired. They, in fact, had already retired on the date when the

articles of charge were placed on them.

09. Learned Counsel for the Union Territory submits that there

was fraud which was perpetrated by these officers on account of which the

contract was given to the Respondents herein and, therefore, there is no

liability on the State to pay anything to the Respondents herein, as for fraud

vitiates everything. He does not dispute that on the date the learned Single

Judge passed the Order and Judgment, the same was passed on Board in the

presence of the then Deputy Advocate General and that the only reason

given by the Union Territory before the learned Single Judge was that there

was paucity of funds and, therefore, the dues of the contractor could not be

paid. The Order and Judgment passed by the learned Single Judge was also

LPA No. 252/2024

CM Nos. 6081/2024 & 6082/2024

Page 6 of 9

passed with the consent of the then learned Deputy Advocate General

representing the Union Territory. There was no submission or any kind of

averment made in the Objections filed by the Union Territory that there was

any kind of fraud played by any of these officers mentioned hereinabove,

on account of which there was undue benefit caused to the Respondents.

10. This is a second case of similar nature that this Court has

witnessed. The earlier case was Union Territory of Jammu & Kashmir and

Ors. v. Mohammad Afzal Reshi, which has already been referred to with

reasonable elaboration hereinabove. That was a case of similar nature,

where the only argument before the learned Single Judge initially was of

paucity of funds on account of which the contractor could not be paid. In

the Review Petition, the State had brought up a fresh ground of non-

adherence to procedure and formalities required by the State and, thereby

challenged the Order passed in the original Writ Petition, which was also

dismissed by the learned Single Judge holding that the contractor cannot be

penalized for the errors of the State officials.

11. In this case also, the submission put forth by the learned

Counsel for the Union Territory/ Appellants is that fraud was played by the

officers of the State on account of which there was loss caused to the public

exchequer. He further submits that on account of the same, the Union

Territory is not bound to pay the remaining amount to the contractor. If the

submissions of the learned Counsel for the Union Territory are to be taken

as correct, several inferences can be adduced.

12. Inference No.1 is that the bureaucracy in the Union Territory

of Jammu & Kashmir is either incompetent, indolent or corrupt. This kind

of an inference is supported by the fact that the initiation of proceedings

against the Officers of the Government has been commenced after the

notice in the Contempt Petition has been given to the Union Territory-

Government. The imputations allege that codal formalities and certain

sanctions/ permissions were not taken before the bid was advertised and,

therefore, the Officers, who were responsible for advertising the bid, are

guilty of misconduct. If this is to be accepted as correct, the question arises

LPA No. 252/2024

CM Nos. 6081/2024 & 6082/2024

Page 7 of 9

what of the superiors who were sitting above the persons who are now

being charge sheeted. Did they have no responsibility to assess whether the

bids which were proposed to be placed are in accordance with the

procedures and the law? The senior bureaucracy is expected to vet and

ascertain whether the proposed bid was in accordance with the formalities/

codal requirements and whether the sanction/ permissions required from the

requisite authorities were taken before placing the bid. Once the bid is

advertised, prospective contractors would bid for the same and the person

whose bid is found to be the lowest would be awarded the work and, if he

completes the work, it is beyond the powers of the State to take an objection

subsequently that the work was carried out without appropriate sanction or

fulfilment of codal formalities. If the contention of the State is upheld, in

every contract that is awarded, the State can literally get its work done for

free. It would not have to pay a single penny to the contractor and, when the

time for payment comes, take up the excuse of violation of codal formalities

and non-adherence to rules and procedures. In such a situation, would it be

proper for the Courts to direct that the work caried out by the contractor be

destroyed so that the State cannot make use of the said work or benefit from

the same. Analysis of the argument of the learned Counsel for the Union

Territory would give rise to several absurd situations, which are

unthinkable.

13. The inference No.2 is that the bureaucracy demanded a bribe

from the contractor and the contractor, not wanting to pay the bribe, at the

same time, did not prefer a complaint against the bribe seekers because his

main work was getting the contract from the State, executing that contract

and getting paid for the same. The fear that the State could be vindictive if

the contractor makes a complaint of corruption against the bureaucracy is

not unreasonable and neither is it fanciful, however, this does not mean that

in this particular case, the bureaucracy, whether it be the senior or junior

bureaucracy, has demanded a bribe from the contractor as the contractor has

never made a complaint and neither is there any material to take such a

view.

LPA No. 252/2024

CM Nos. 6081/2024 & 6082/2024

Page 8 of 9

14. The third inference that can be drawn is that if the contention

of the Union Territory-Appellants is upheld and payment denied to the

contractor, public works would suffer a paralysis and work could come to a

standstill with contractors refusing to participate in bids fearing that they

would be put to a loss ultimately with the State taking ex post-facto

objections relating to the work.

15. Lastly, if the State does not have the funds to execute public

works, it must refrain from issuing advertisements for the execution of

those works. After the completion of the works, the non-availability of

funds can only grant the State a reasonable time to make the payments.

However, grounds of non-adherence to procedure or bureaucratic red tape

or seeking permission from the appropriate authority before advertising the

bid are grounds that are impermissible and untenable in law for the State to

take.

16. This appeal has been filed as a dilatory measure, where the

Union Territory has come forward after it has received the notice in the

Contempt Petition filed by the Respondents herein in an Order passed by

the learned Single Judge, where the liability has been admitted by the Union

Territory.

17. Under the circumstances, this Court is of the view that the

present LPA does not have any merit. The same fails and is, accordingly,

dismissed. Besides, a cost of Rs.1.00 lac is imposed upon the Union

Territory-Appellants for wasting the time of this Court by filing this

frivolous appeal. As there was no notice issued to the Respondents herein

and the Respondents were never put to any kind of hardship, this cost shall

be deposited into the account of the J&K Yateem Khaanah bearing No.

0372040100020529 maintained with the Jammu & Kashmir Bank, Branch

Office Bemina, Srinagar within a period of four weeks from today and the

State shall recover this amount from the Officer who advised for filing of

the LPA after identifying him/ her.

LPA No. 252/2024

CM Nos. 6081/2024 & 6082/2024

Page 9 of 9

18. Letters Patent Appeal shall stand dismissed in the above terms,

along with the application seeking interim relief (CM No. 6082/2024).

(Rajesh Sekhri) (Atul Sreedharan)

Judge Judge

SRINAGAR

October 7

th

, 2024

“TAHIR”

i. Whether the Judgment is approved for reporting? Yes/No.