J L Wali & Ors vs Union Of India & Ors

V. Kameswar Rao, J

This intra Court appeal lays a challenge to the order dated 08.09.2010 (impugned order) passed by the learned Single Judge in W.P.(C) No.19856- 59/2005 whereby the writ petition filed by the appellants was dismissed.

The appellants herein claimed that they were registered contractors of the Government of Jammu & Kashmir engaged in the business of construction of roads, buildings and parks. They had claimed to have been awarded works by the Public Works Department (PWD), Department of Garden, Parks and Floriculture of the Government of Jammu and Kashmir as well as the Central Public Works Department (CPWD) of the Government of India. It was their case before the learned Single Judge that on account of the precarious law and order situation in the Kashmir valley they had to migrate from Jammu and Kashmir to Delhi in the year 1989 leaving behind their belongings as well as properties. They had never thought that they would leave their place without any hope of their safe return. The appellants hardly got any time to carry their belongings. Their homes/ land/ trees were left at the mercy of State Administration who were required to at least protect the same till the congenial environment is created in the valley for safe return.

The case of the appellants before the learned Single Judge was that at the time of such migration the payment for the works already completed by them were due from the PWD of the Government of Jammu and Kashmir for which numerous representations were made to the Government of Jammu and Kashmir to clear the bills, but the same failed to evoke any response. Pursuant to the same, the appellants filed W.P(C) No.2441/2001 before this Court and the said petition was disposed of by the Division Bench vide order dated 23.07.2002 by noting that as the appellants had already made representation before the Government of Jammu and Kashmir, the Government of Jammu and Kashmir was directed to consider the claims of appellants and take an appropriate decision as early as possible within a period of four weeks from the date of communication of the said order.

The Office of the Chief Engineer, PWD wrote to the counsel for the appellants on 05.09.2002 claiming that almost full payment to the work done has been made to the concerned contractors. The appellants were asked to provide the full details of the work done. The same was followed by another letter from the Chief Engineer, PWD to the Secretary, Resident Commission of Government of J&K, New Delhi on 21.01.2003 wherein it was stated that since, the works were executed two decades ago during which period, a good number of Engineers/other officers have either retired or died, it would not be possible to obtain any detail from those Engineers about the works after such period. The representation of the appellants was thus rejected. It may be stated here that the impugned order reveals that a bank draft of Rs.32,200/- was paid to the appellant no.1.

The learned Single Judge in paragraph no.8 onwards of the impugned order has held as under:-

"8. This Court finds that the above chart, no doubt acknowledges that the above sum is still outstanding, but notes in the Remarks column that the claim "needs approval from concerned authority." The impugned order shows that the claims could not be verified because they related to works performed more than two decades ago and the complete records were not available with the Government of J&K. Admittedly, even the measurement books were with the Petitioners and were handed over to the Government of J&K by the Petitioners by a letter dated 1st June 2004.

Mr. Wali urged that refusal of the Government of J&K to honour the claims of the Petitioners was mala fide and was as a reprisal for the Petitioners having filed a contempt petition in the Court. This Court is unable to agree with this submission. The reasons given in the impugned order appear to be plausible. They do not indicate any mala fides on the part of the J&K Government. Whether the Petitioners' claims can be admitted is a matter to be decided essentially by the Government of J&K. This is not an issue where, in exercise of its powers under Article 226 of the Constitution, this Court can interfere. It is not possible for this Court to examine the measurement books and determine if the claims made are justified and to what extent.

For the aforementioned reasons, the prayers sought in this writ petition cannot be granted. The writ petition is dismissed."

The submission of Mr B L Wali, learned counsel appearing for the appellants primarily is that the learned Single Judge has erred in rejecting the writ petition. According to him, the respondents having paid Rs.50,000/- to the appellants, there is no reason for them not to pay the balance amounts as due and payable. In support of above submissions, he has relied upon various documents to show the nature of work carried out by the appellants herein.

No doubt, that the situation in the then State of Jammu and Kashmir was not conducive, which resulted in many people leaving the valley and migrating to Delhi and other parts of the country. The petition for the first time was filed in the year 2001, i.e., eleven years from the date of migration. It can be said that the appellants had come to Delhi with a firm belief to go back and it is in the expectation, eleven years had gone by. The period would not be so long period for the learned Single Judge to dismiss the petition only on the ground of delay and laches nor he has done that.

The issue is whether the amount as was due and payable is required to be paid. The stand taken by the respondents is that they cannot verify the works which were performed in the absence of complete records.

Though, Mr Wali has highlighted that, an amount of Rs.50,000/- was paid to the appellants, still it cannot be construed to mean that the complete record is available with the respondents.

In any case, we can state, with the passage of time, the record may not be available with the respondents. The claim by the appellants is for payment for the work alleged to have been done by them, at least before 1989, i.e. for certain works undertaken 37 years back. In the given facts of this case, the conclusion drawn by the learned Single Judge cannot be contested, when the learned Single Judge held the inaction of the respondents is not malafide. The learned Single Judge has rightly held that due to the passage of time it is plausible that the records may not be available with the Government of Jammu and Kashmir. It is rightly held by the learned Single Judge that, it is not a case where the court can exercise its powers under Article 226 of the Constitution of India.

In the given facts of this case, we do not see any reason to interfere with the conclusion drawn by the learned Single Judge vide impugned order.

In view of our discussion above, the petition is devoid of any merit and is accordingly dismissed.