VERDICTUM.

IN

Sr. No. 60
Supp. List
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
LPA No. 121/2023
In OWP No. 1641/2016

Union Territory of JK & Ors. …Appellant(s)/Petitioner(s)

Through: Mr. Mubeen Wani, Dy. AG

Vs.
Mohammad Afzal Reshi ...Respondent(s)

Through: Mr. Lone Altaf, Advocate vice

Mr. Irfan Andleeb, Advocate
Mr. Shafqat Nazir, Advocate
CORAM:
HON’BLE MR. JUSTICE ATUL SREEDHARAN, JUDGE
HON’BLE MR. JUSTICE MOHD YOUSUF WANI, JUDGE
ORDER
04.09.2024
Per Atul Sreedharan-J (Oral)

1. This appeal has been filed by the Union Territory of J and K

(hereinafter referred to as the “State”), against the Order dated 23rd

September 2021, passed by the learned Single Judge in OWP

No.1641/2016, clubbed with CPOWP No. 319/2018 along with

judgement dated 10/05/2023 passed in RP No. 40/2022 and CCP (S)

No. 142/2022.

2. The respondent herein had carried out certain civil works for the UT

in the year 2015 for which an undisputed amount of ₹ 42.97 Lacs was

due to him from the appellant. Part payment had been made earlier

and a balance of ₹ 20.97 Lacs was outstanding, which is also

undisputed. As repeated attempts by the respondent to secure the

balance amount from the UT failed, he preferred OWP No. 1641/2016

before this Court. The petition was allowed by the Ld. Single Judge

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vide order dated 23/09/2021directing the appellant herein to release

the balance of ₹ 20.97 Lacs along with interest @ 6% from the date on

which the payment became due, within a period of two months from

the date of the order. CPOWP No. 319/2018 was dismissed as

infructuous. As the aforementioned order was not given effect to by

the union territory, filed CCP (S) No. 142/2022 for enforcement of the

order dated 20/09/2021. During the pendency of the contempt

petition, the appellant filed a review petition being RP No. 40/22. By

a detailed order dated 10/05/2023, the learned single judge dismissed

the review petition and kept the contempt petition pending.

3. For the reasons that shall unfold, the Court deprecates the conduct of

the Union Territory in filing the present appeal, the only motive being

to harass the respondent for which certain precipitate orders are

required to be passed so that the Union Territory in all future cases

shall appreciate that there are severe consequences to be suffered for

misuse of judicial process.

4. The brief facts essential to decide this Letters Patent Appeal are as

follows:

5. The respondent herein was the original petitioner in OWP No.

1641/2016. The grievance of the petitioner therein was that, pursuant

to the allotment of a tender by the appellants herein, in his favour for

execution of Earth filling work at RB0-248 RFP for a variable length

of 535 RFT (Section -1), the respondent executed the work for earth

filling for the Wullar Manasbal Development Authority at the allotted

cost of Rs. 26,07,750/-. After the respondent successfully executed the

work, he was called upon by the appellants herein to maintain the FSL

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at the average height of 98.75 meters instead of 98.0 meters, as

approved by the Consultant. The additional work resulted in an

increase of 0.75 meters in height for the whole area. Upon execution

of the additional work, the respondent herein became entitled to the

payment of Rs. 16.90 Lacs over and above the original allotted cost of

Rs. 26.07 Lacs.

6. The appellants accept that the respondent completed the additional

work also successfully and thereafter handed over the same to the

appellants. The respondent submitted bills for payment of Rs. 42.97

Lacs (consolidated amount) and the appellants released only Rs. 12

Lacs as part payment and the balance was not paid on the ground of

paucity of funds. Repeated parleys of the respondent with the

appellants, yielded no result compelling the respondent to file the

aforementioned original writ petition.

7. The learned Single Judge, while issuing notice to the appellants

(respondents before the Writ Court) also issued a direction to the

appellants to consider the claim of the respondent in accordance with

rules. As the interim direction was not complied with, the respondent

herein had filed a contempt petition during the pendency of the

original writ petition, which was registered a CPOWP No. 319/2018.

The appellants were also put on notice in the said contempt petition.

8. The Development Authority never disputed the respondent’s claim of

Rs. 42.97 Lacs as the total amount due to him. The appellants also

admitted that they have released an amount of Rs. 12 Lacs in favour

of the respondent and a balance of Rs. 29.7 Lacs was outstanding.

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9. Before the learned Single Judge, the consistent stand of the appellant

Development Authority was that the balance amount of Rs. 29.7 Lacs

could not be paid to the respondent herein due to non-availability of

funds. The appellants herein further submitted before the learned

Single Judge that the matter was taken up by the Development

Authority with the Administrative Department which is Department of

Tourism & Culture, for release of funds, and that the response of the

Administrative Department was awaited.

10. Thereafter, the learned Single Judge records in the impugned order

that the work in question was allotted to the respondent herein way

back in the year 2013 and it was completed by the end of the year

2015, and that since the year 2015, the respondent has been

clamouring for payment due to him on account of execution of the

aforesaid work. The learned Single Judge also took into consideration

that the non-payment could be understood if the respondent was guilty

of breach of contract for not completing the work on time and that this

could have been the reason for the appellants herein to withhold his

payment. However, the learned Single Judge takes note of the fact that

in the case before him, the execution of the work was never disputed

by the appellants herein and neither any dissatisfaction relating to the

quality of work executed by the respondent was ever sounded by the

appellants.

11. The learned Single Judge has also noted that in the statement of facts

filed by the appellants herein in the contempt petition, the appellant

Authority had fairly conceded that the amount of Rs. 29.07 Lacs is

still payable to the respondent herein and that the reason for denying

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this payment to the respondent herein for more than 6 years was only

the non-availability of the funds. Thereafter, the learned Single Judge

with much concern records “I do not know how many years the

Administrative Department will take for arranging and releasing

the requisite funds in favour of the Development Authority for

discharging the liability towards the petitioner/respondent herein.

It pains me to notice that this is not a solitary case of denial of due

payments of a contractor who has successfully executed his work

for the Government, but I am confronted with such cases every

day. The contractors filed petitions to get their payments which

are admittedly due to them on satisfactory completion of the

works allotted to them by the various government departments

and the agencies. Respondents though admit their liability, but

take shelter to the plea that there is paucity of funds. One fails to

understand that if the Government department or its agency does

not have sufficient funds at its disposal, how could it tender the

works and allot them to the contractors”. This Court shares the

anguish of the Ld. Single Judge and concurs with its observation

hereinabove.

12. Thereafter, in paragraph 7 of the impugned judgment, the learned

Single Judge disposed of the petition by directing the appellants

herein to release the balance payment in favour of the respondent to

the tune of Rs. 20.97 Lacs alongwith interest @ 6% per annum from

the date it has become due, within a period of two months from the

date a copy of the order is served upon the appellants herein. In

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addition thereto, for all future cases, the learned Single Judge passes

further directions which reads as under:

i. “That the Chief Secretary of the Union Territory

shall examine this issue after getting inputs from all
the departments and the agencies of the Government
which get their works executed through contractors
and deny them their due payments citing paucity of
funds as impediment. He shall ensure that these
matters are settled by the government at its own level
without constraining the aggrieved contractors to
approach this court. This would avoid unnecessary
litigation and piling up of cases in this court.
ii. That the Chief Secretary is well advised to constitute
a high empowered committee consisting of
administrative Secretary of the concerned
department, Secretary Finance and a senior Chief
Accounts Officer, to examine these claims of the
contractors and wherever claims are found genuine,
the concerned department will make the payments
without any further wastage of time, based on the
recommendations of the aforesaid Committee.
iii. Should there be any delay in the settlement of
admitted claims of the contractors, the amount shall
be paid along with the interest at the lending rate of
interest of the bank, so that the contractors are not
made to face starvation and financial crisis.”

13. The directions supra are adopted by this Court in totality and they

shall now constitute the order of the Division Bench of this Court. As

the said order passed by the learned Single Judge was not complied

with,the respondent in this appeal, files contempt petition being CCP

(S) No. 142/2022. During the pendency of said contempt petition, the

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appellants herein filed a Review Petition being RP No. 40/2022,

which was dismissed by the Ld. Single Judge vide judgment dated

10/05/2023.

14. In the review petition, the appellants herein took a stand that the

additional work carried out by the respondent herein was not

authorized by the appellants. In other words, the case put up in the

Review Petition was that the Authority, without seeking prior

approval, got the additional works executed and created an additional

liability of Rs. 16.9 Lacs and, therefore, it was not possible for the

appellants herein to disburse any further payment to the respondent-

Contractor.

15. After having heard both the sides the learned Single Judge in

paragraph 2 of the judgement dated 10/05/2023, holds “….I am of

the view that this Review Petition too is amongst the frivolous

litigation which the babus in the Government file to stultify

legitimate rights of the citizens. The respondent no. 1 is a

Contractor by profession and was allotted the works of earth

filling at an allotted costs of Rs. 26,07,750/- which the respondent-

contractor completed successfully. While the contractor was due

to finish his allotted work, he was called upon by the appellants

herein to maintain FSL at the average height of 9.875 meters

instead of 9.800 meters as approved by the Consultants. This

resulted in increase of 0.75 meters in height for the entire area

and the respondent-contractor had to execute the additional work

to the tune of Rs. 16.9 Lacs. The contractor completed the entire

work including the additional one successfully and handed over

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the same to the appellants herein. He accordingly submitted the

bills for the payment of Rs. 42.97 Lacs. An amount of Rs. 12.00

Lacs as part payment was initially released and rest of the amount

was not paid due to paucity of funds.”

16. Undisputedly, the Authority also admitted that they have so far paid

an amount of Rs. 20 Lacs to the respondent-Contractor and a balance

of Rs. 20.97 Lacs were outstanding. The only reason which was put

forth for non-release of balance payment in favour of the respondent

herein was paucity of funds. The learned Single Judge also held that

the appellants herein who were review petitionershave not denied the

execution of works on the spot but has only taken an exception that

the additional work got executed by the Authority was without prior

administrative approval from the department.

17. The learned Single Judge dealt with the submission by holding that

the grant of administrative approval or completion of any other codal

formality is a matter that concerns the Administrative Department for

which the contractor cannot be penalized. It further held that the

respondent-contractor invested his men and money to complete the

additional work at the same rates as the original work, and that the

appellants herein “review petitioner” failed to appreciate the gesture

of the respondent-Contractor who agreed to execute the additional

work on the same rates. Thereafter, it held that the review petition was

nothing but an attempt to gain more time so that the demand for

balance amount raised by the respondent herein was frustrated.

Resultantly, the review petition was dismissed. However, while

passing the order in the contempt petition, the learned Single Judge

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recorded the submission put forth by the learned Dy. AG to accord

one last and final opportunity of four weeks to be granted to the

respondents/appellants herein to release the balance payment in favour

of the petitioner/respondent herein in terms of the judgment passed

by the learned Single Judge earlier, failing which the Commissioner

Secretary to Government Tourism Department along with Chief

Executive Officer Rural Development Authority shall remain present

in person. Thereafter, the contempt petition was directed to be listed

on 14.06.2023.

18. In the present appeal before this Court, it is the same symphony that

was played before the learned Single Judge has been replayed before

this Court; that the additional work was carried out without

administrative sanction. This is most painful to the ears of this Court.

Despite this Court having passed several decisive orders in the past in

contempt petitions, the Union Territory continues to play hide and

seek with the orders of this Court.

19. Under the circumstances, this Court feels that an order needs to be

passed in this particular Letters Patent Appeal which is exemplary and

deterrent in nature to prevent the Union Territory from filing such

frivolous cases and delaying the relief granted to the litigants. In this

particular case, the respondent herein has been kept waiting for nine

(9) years from the year 2015 for the payment of his just dues which

are not disputed. He was compelled to file writ petition only because

his admitted dues were not being paid by the Union Territory for six

long years on the grounds of paucity of funds which excuse is

abominable and condemnable in the strongest words. The UT

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government is part of the Union Government which is the repository

of the lion’s share of the wealth generated in this country in the first

instance and thereafter distributed to the states. It shocks the

conscience that we tout ourselves as the fifth largest economy in the

world, aspiring to be the third largest soon, but do not have the funds

to pay the legitimate dues of the respondent amount to Rs. 20.97 Lacs,

which denigrates and puts to doubt the lofty claims of the economic

prowess of the country.

20. Furthermore, the filing of the present Letters Patent Appeal is

motivated by malice and intent to deprive and harass the respondent

herein further from receiving his rightful dues. This Court is of the

opinion that exemplary costs should be imposed. Therefore, a cost of

one lakh rupees from the year 2015 for every year of delay, till the

passing of this order shall be paid to the respondent herein, totalling

Rs. 9.00 Lacs as on date, shall be paid to the respondent forthwith.

This Cost shall be recovered from the salary of the Officer who

initiated this misadventure of filing of the present LPA knowing fully

well that there is no reasonable cause at all.

21. The payment of this cost of Rs. 9 Lacs shall be in addition to the

payment of the balance amount due to the respondent herein, along

with interest @ 6% per annum, as imposed upon the appellants herein

by the learned Single Judge in the principal order.

22. Learned counsel for the respondents informs this Court that harried by

the Government of Jammu and Kashmir for so many years, the

respondent has died on 5th July, 2024, without getting an opportunity

to savour the results of his hard work. This amount shall be paid to the

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legal heirs of the respondent, the details of the legal heirs shall be

furnished to the appellants as soon as possible. The same shall be

given to the Advocate General’s Office, who shall place the same

before the Government of Jammu & Kashmir to ensure compliance.

23. The order passed herein shall be complied with within two weeks

from the date of this order being signed and uploaded, failing which

the respondent herein is at liberty to file fresh contempt petition for

the enforcement of this order.

24. In view of above, the Letters Patent Appeal (LPA) stands dismissed

with exemplary costs of Rs. 9 Lacs.

(MOHD YOUSUF WANI) (ATUL SREEDHARAN)

JUDGE JUDGE

SRINAGAR
04.09.2024
ARIF

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