ABDUL AZIZ SHEIKH Vs. STATE OF JAMMU AND KASHMIR

JUDGEMENT

(1.) Petitioners alleged contractors were allotted various works for improvements, construction and treatment of various spots of Dab and Lal Canals by Executive Engineer and Assistant Executive Engineer (Irrigation) Ganderbal. For the purpose, allotment letters were issued by Executive Engineer and Assistant Executive Engineer in July, 1997. Petitioners claim, that pursuant to these allotment letters, they executed agreements for their respective works with respondents 4 and 5. Some of these works were completed and some are near completion as per the schedule and specifications laid down by the above respondents. Petitioners have not been given payments for these works despite their presentations and service of notice through their counsel, respondents 5 and 4, Assistant Executive Engineer and Executive Engineer (Irrigation) Ganderbal, took up the matter with their higher ups and requested for allotment of funds to the tune of Rs. 60 lacs for Lar Canal and Rs. 35 Lakhs for Dab Canal to meet the requirement of the petitioners for the work done pursuant to said allotment orders. The funds were initially earmarked for these works, but were subsequently withdrawn for other works. Not only so, the respondents in disrespect to the rules and regulations have issued a fresh tender NIT 5 of 1997-98 dated 31-3-1998, inviting tenders for the works which have been either completed by the petitioners or are near completion by them in terms of the said allotment orders. This action of petitioners is arbitrary and illegal in so far as the works are already completed/near completion. Petitioners are seeking writ to quash the above NIT 5 of 97 and further to restrain respondents from allotting these works pending payment under the said NIT. The Mandamus is prayed to allow the petitioners to complete the remaining work(s) allotted to them and for payments of the bills to the tune of Rs. 60 lacs for the works carried out or in the process of being carried out by them on Lar and Dab Canals.

(2.) Official respondents have in reply questioned the very maintainability of the writ on the ground that disputed questions are involved. Besides the allotment orders are not issued by the Competent authority. No lawful agreement exists between the parties. Petitioners have alternate remedy to approach the Civil Court. No legal rights of petitioners have been infringed nor any statutory obligation is cast on respondents to exercise powers as desired by the petitioners. The allotment of works have no legal basis. The claimed allotments are not covered by any legal authority or sanction. No agreement in law has come into existence between the parties. Respondents 4 and 5 had to take up the matter with their higher ups and could not have allotted the works on their own. As respondents 4 and 5 have acted clandestinely the matter as brought to the notice of State Government, was inquired and the works already carried out had to be scrutinised and verified on spot. A Committee was constituted. The Committee has given report to the Government and has recommended that as a fait-accompli the payment on account of execution of work are to be made on assessment of works done by the concerned persons, after actually ascertaining the claim of each of the petitioners on spot on inquiry and on verification. The report of the Committee is under consideration and appropriate orders thereto, informed of public interest, are in pipeline. It is specifically averred and refuted that NIT-5 of 97-98 dated 20-3-98, has been issued in respect of works which have either been completed or are nearing completion by petitioners. The above NIT-5 is for the works which are required to be taken in public interest and does not concern or involve the works completed or left incomplete by the petitioners. The allegation of petitioners that the NIT-5 is in respect of works allotted to them is asserted to be totally false.

(3.) Heard.