Amanullah Khan v. Union Territory of J&K & Ors.

Through: Mr. Ravinder Gupta, AAG. Coram: HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

The petitioner seeks issuance of directions to the respondents to release JUDGEMENT sum of Rs. 7,47,377/- along with the interest till date, on account of the following works executed by the petitioner on the instructions of the respondent No.3:

(i) (ii) (iii) (iv) (v) (vi) (vii) Bhargan to Roat Road Km 5th to 6th, Bhargan to Roat Road Km 7th to 8th, Bhargan to Roat Road Km 1st to 2nd, Doda to Malwana Jagir, Malwana Jagir to Abli Masri, Dhar to Dashnan Road, & Bharath Road to Aul

The petitioner claims to have submitted the copy of bills and work done claims to the respondent No. 3. As the payment was not made to the petitioner, the petitioner served a legal notice dated 08.01.2021 upon the respondents calling upon the respondents to make a payment of Rs. 2 WP (C) No. 654/2021 7,47,377/- and in response to the same, the respondent No. 4 admitted the claims of the petitioner and stated that the payment of work done claims and funds are still awaited for clearance of pending liabilities. The respondent No. 4 also admitted the execution of the work by the petitioner. On these facts, the petitioner has filed the present writ petition.

Response stands filed by the respondents, in which the respondents have admitted execution of the work done by the petitioner in Para 5 of the objections, however, it is stated that the same was executed without there being any work order, technical sanction and administrative approval and also without availability of funds. It was also stated that no tender was floated and the petitioner had executed the aforesaid works having full knowledge of the non-availability of the funds. Therefore, the present petition deserves to be dismissed. It is also stated that the petitioner had a remedy of filing a suit and there is delay in filing the present writ petition.

Mr. N. A. Gattoo, learned counsel for the petitioner submits that as respondents have admitted the liability in the reply to the legal notice and further respondents have admitted that the petitioner has executed the works, so the respondents are under legal obligation to discharge the liability. He placed reliance upon the decision of the Co-ordinate Bench of this Court in “Abdul Hafiz Wani vs. State of J&K and others” decided on 02.03.2022.

Per Contra, Mr. Ravinder Gupta, learned counsel for the respondents argued that the work was executed without administrative approval, technical sanction and without there being any tender floated for the same. He further argued that the claim is time barred as the petitioner is guilty of

3 WP (C) No. 654/2021 delay and latches in filing the writ petition. He further laid stress that the petitioner should have filed a civil suit rather than filing a writ petition. Heard and perused the record. In the reply dated 01.02.2021 submitted by the respondent No. 4 in response to the legal notice of the petitioner, the respondent No. 4 has admitted execution of the work done by the petitioner and in fact has admitted the liability of Rs. 7,47,377/-. Further, it has been stated that the funds are still awaited for clearance of pending liabilities. The respondents, in their response have nowhere stated that the said reply submitted by the respondent No. 4 is either forged or fake document and in fact no specific reply has been furnished by the respondents in their response to the legal notice dated 01.02.2021, wherein the liability has been admitted by the respondent No. 4. But at the same time the respondents have admitted the execution of works by the petitioner though without approval and technical sanction.

The contention of the respondents is that the work has been executed without administrative approval and without there being any tender floated for the said work, as such, the petitioner is not entitled to the amount claimed by him. Once the respondents have admitted execution of the work and also admitted their liability through their communication dated 01.02.2021, the respondents cannot take refuge under the said plea, as such, this plea is rejected. In fact identical view has been taken by co- ordinate bench of this Court in “Abdul Hafiz Wani Vs. State of J&K and others” bearing OWP No. 631/2012 decided on 02.03.2022. 4 WP (C) No. 654/2021

The other contention raised by Mr. Ravinder Gupta is that the claim of the petitioner is time barred. This contention too is misconceived because once the execution of work by the petitioner and the claim of the petitioner has been admitted by the respondents vide communication dated 01.02.2021, the petition would not be hit by delay and latches. The Coordinate Bench of this Court in “Abdul Hafiz Wani vs. State of J&K and others” bearing OWP No. 631/2012 decided on 02.03.2022, has also observed that once the liability has been acknowledged, then the petition would not be hit by delay and latches.

The last contention raised by the respondents is that the petitioner should have filed the civil suit instead of filing the writ petition. The issue is no more res integra that even in contractual matter the writ petition is maintainable for monetary claims where the liability is admitted. Reliance is placed upon decision of the Hon‟ble Apex Court in Surya Constructions vs. State of Uttar Pradesh and ors, 2019 Legal Eagle (SC) 1422, in which the Apex Court has held as under:

3. It is clear, therefore, from the aforesaid order dated 22.03.2014 that there is no dispute as to the amount that has to be paid to the appellant. Despite this, when the appellant knocked at the doors of the High Court in a writ petition being Writ Civil No. 25216/2014, the impugned judgment dated 02.05.2014 dismissed the writ petition stating that disputed questions of fact arise and that the amount due arises out of a contract. We are afraid the High Court was wholly incorrect inasmuch as there was no disputed question of fact. On the contrary, the amount payable to the appellant is wholly undisputed. Equally, it is well settled that where the state behaves arbitrarily, even in the realm of contract, the High Court could interfere under Article 226 of the Constitution of India [„ABL International Ltd. And Another V. Export Credit Guarantee Corporation of India Ltd. and Others‟ (2004 (3) SCC 553)].

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