HIGH COURT OF JAMMU &KASHMIR AND LADAKHAT SRINAGAR Reserved on: 11.04.2025 Pronounced on: 15.05.2025 LPA No.96/2024 UT OF J&K & ORS. …APPELLANT(S) Through: Mr. Zahid Qais Noor, GA. Vs. M/S EHSAN CONSTRUCTIONS TRAL …RESPONDENT(S) Through: None. CORAM:- HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE HON’BLE MR. JUSTICE RAJESH SEKHRI, JUDGE JUDGMENT 1. The instant appeal is directed against the order dated 01.12.2023 passed by the learned Writ Court in WP(C) No.1087/2022, whereby the appellants have been directed to process the case of the respondent for grant of post-facto approval of the competent authority and thereafter, the dues of the respondent be released in his favour. 2. The respondent had filed a writ petition for directing the respondents to release the unpaid amount for execution of work of construction of multi- purpose Indoor Sports Hall at Tral Pulwama along with interest. 3. The appellants objected the writ petition by submitting that the J&K Sports Council, vide tender Notice No.23 of 2016-17 dated 10.08.2016, invited tenders from the approved and eligible contractors for construction of multipurpose indoor sports hall at Tral, district Pulwama, for an amount of Rs.400.00 lacs. The advertised cost for the work was notified at Rs.3,37,21,085.00/ and work was to be completed in 11 months. The Contract Committee vide letter dated 08.02.2018, proposed allotment in favour of the respondent and vide order dated 11.05.2018, the work for construction of multipurpose indoor sports hall at Tral was allotted to the respondent and, accordingly, an agreement was drawn in pursuance of the allotment of work for the total cost of Rs.3,37,21,085. During execution of the work, it was reported that the total cost of the project had escalated to Rs.505.83 lacs (Rs.478.84 lacs for civil works and Rs.26.99 lacs for electrical works) and pursuant to report in respect of excess work, the Sports Council vide letter dated 16.09.2021, authorized 15% excess work over the allotted cost of the said work in favour of the respondent for the increased quantities. The allotment order and agreement provided for sanitary fitting and disposal system and other civil works but was not providing for electric work, which was an excess work to the tune of Rs.26.99 lacs done by the contractor at his own risk and responsibility not covered by the basic NIT. A committee was constituted vide order dated 21.09.2021 to verify the circumstances, under which 50% excess work was executed for construction of sports hall in question and to ascertain whether codal procedure has been followed for executing the additional/excess items and specifications. The Committee vide its report dated 30.12.2021, reported that no codal procedure has been followed while executing the additional/excess items and allowing the same was not within the jurisdiction of the Chief Engineer. It was pleaded by the appellants that there is no provision of law in force to justify the relaxation of norms at this stage in favour of the respondent, which required the mandatory codal formalities, both technical and administrative, to be followed before exceeding the work over and above the allotted rates/specifications. 4. The learned Writ Court, after considering the rival submission of the parties, disposed of the writ petition in the manner mentioned above. 5. Heard learned counsel for the appellants and perused the record. 6. So far as the execution of excess work is concerned, the appellants have admitted the execution of excess work by the respondent. The only reason that has been projected by the appellants to deny the claim of the respondent in respect of the excess work executed by him is that he had done the same at his own risk and responsibility and in absence of codal formalities, the payment cannot be released in favour of the respondent. It is borne from the record that 15% of the excess work has been approved by the appellants and the amount for the 15% excess work stands already released in favour of the respondent. The perusal of the communication dated 06.05.2021 addressed by the Executive Engineer, Construction Division Kashmir, J&K Sports Council to the Secretary, J&K Sports Council, Srinagar, reveals that he had sought revised Administrative approval for the total cost to the extent of Rs.505.83 lacs. It is also mentioned in the communication that the electric works were executed through the same agency and the higher officers were informed from time to time vide communication dated 29.10.2020. In this context, this Court deems it appropriate to extract the relevant portion of the communication dated 06.05.2021 as under: “It was also stated that since the Project being under PMDP, thus needed to be completed within stipulated time frame, the additional works were executed through the same Agency to whom the original contract was allotted. On the verbal directions of the Higher Authorities who visited the said site time to time and directed to complete the said Project within stipulated time-frame. The electric works got executed through the same Agency which was informed to Higher ups from time to time vide letter No.SC/CDK/244/A/B/C/2279 Dated:29/10/2020. However, the work was executed on war footing basis and completed. As such the total cost of the Project thus accumulated to Rs.478.84 lacs for civil works and 26.99 lacs for electrification (Total = 505.83 lacs) at the time of submission of bills the electric works will be got certified by Electric Deptt. It is therefore requested that the Revised Administrative Approval for the total cost to the extent of Rs.505.83 lacs may kindly be accorded and action taken by the undersigned for execution of additional items through the same Agency to whom the original Project stands allotted may also be confirmed so that the supplementary agreement can be drawn with the Agency to the extent of Rs. 505.83 lacs. 7. The perusal of the communication (supra) reveals that the higher officials of the appellants visited the site from time to time and directed to complete the project within the stipulated timeframe and the electric works got executed through the same agency, the intimation of which was even sent to the higher officials of the appellants. The appellants had themselves not included the amount for electrification in the original estimate and due to the topography of the land, the cost of the project was increased. 8. Nothing has been brought on record as to what was the outcome of communication dated 06.05.2021, though it is stated by the appellants that the committee submitted report dated 30.12.2021 stating therein that no codal procedure has been followed while executing the additional works 9. Be that as it may, once the works have been executed by the respondent to the satisfaction of the appellants, the appellants cannot deny his claim only on the ground of non-performance of codal formalities. The performance of codal formalities was an obligation on the part of the appellants and, of course, the respondent was to cooperate with the appellants, if required. The learned Writ Court has arrived at the conclusion that the respondent cannot be made to run from the pillar to post and asked to get the approval from the competent authority for release of his legitimate dues. The learned Writ Corut has rightly observed that it is the responsibility of the appellants to obtain post facto approval of the excess work executed by the respondent. 10. We have examined the judgment passed by the learned Writ Court and we do not find any infirmity in the same. The appeal is found to be misconceived and is, accordingly, dismissed. (RAJESH SEKHRI) (RAJNESH OSWAL) JUDGE JUDGE Srinagar 15.05.2024 “Bhat Altaf-Secy” Whether the order is reportable: No