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2000 Supreme(J&K) 91
JAMMU & KASHMIR HIGH COURT
Syed Bashir Ud Din, J.
ABDUL AZIZ SHEIKH AND OTHERS - PETITIONERS
v.
STATE OF J. & K. AND OTHERS - RESPONDENTS
C.W.P. No. 192 of 1998,
Decided on : May 8, 2000.
M. M. Dar, for the Petitioners.
M. H. Attar, Addl. Advocate General, for the Respondents.
The availability of an alternate remedy through a civil suit for parties to non-statutory contracts.
Headnote:
Contractors - Allotment of Works - Jammu and Kashmir Constitution - Section 103 - Burmah Construction Co. v. State of Orissa (AIR 1962 SC 1320), Lekh Raj Sathramdas Lalvani v. N. M. Shah, Dy. Custodian Bombay (AIR 1966 SC 334), Radhakrishna Agarwal v. State of Bihar (AIR 1977 SC 1496), Union Construction Co. v. Chief Engineer Eastern Command, Lucknow (AIR 1960 All 72)
Fact of the Case:
Petitioners alleged non-payment for works completed under allotment orders. Respondents disputed the legality of allotment orders and existence of lawful agreements, and suggested an alternate remedy through a civil suit.
Finding of the Court:
The court found that the allotment of works and execution of agreements were disputed, and the claims regarding works done and payments were matters of inspection and verification. The court also considered the availability of an alternate remedy through a civil suit.
Issues: Dispute over the legality of allotment orders, existence of lawful agreements, and the availability of an alternate remedy through a civil suit.
Ratio Decidendi: The court cited precedents to establish that the writ jurisdiction of the court cannot be resorted to for enforcing civil liabilities arising from a breach of contract. It emphasized the availability of an alternate remedy through a civil suit for parties to non-statutory contracts.
Final Decision: The writ petition was dismissed in limine.
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 completion by them in terms of the said allotment orders. This action of 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 of 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 scrutinized 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 refused that NIT-5 of 97-98 dated 20.3.1998, 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 in respect of works allotted to them is asserted to be totally false.
3. Heard.
4. It is manifest that the allotment of works (Annexure-A to A30) by Executive Engineer and Assistant Executive Engineer, respondents 4 and 5, is stated to be beyond their powers, without authorisation. The exec
