HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR WP(C) No. 3339/2023 CM No. 884/2024 CM No. 8015/2023 Pronounced on: 09.05.2025 Mehraj-ud-Din Khan …. Applicant/Appellant(s) Through:- Mr. Anis-ul-Islam, Advocate with Mr. Faizan Farooq, Advocate. V/s UT of J&K and others …..Respondent(s) Through:- Mr. Mohin Qadri, Sr. AAG with Ms. Maha Majeed, Assisting counsel. CORAM: HON’BLE MRS. JUSTICE SINDHU SHARMA, JUDGE JUDGMENT 01. The Jammu & Kashmir Housing Board was authorized by the State Health and Medical Education Department to execute the construction of a 200-bedded District Hospital along with residential quarters at Handwara, Kashmir. The estimated cost of the project was ₹46.65 Crores. 02. The authorization of the execution of the work at the allocated cost was approved by the Board within the approved pattern of execution through pieceworker M/s Mehraj-ud-Din Khan, on 17.07.2018, subject to the condition that the work would be completed within the targeted timeframe as mentioned in the Technical Project Report (TPR). The aforesaid work was to be executed as per the approved execution pattern of the Jammu & Kashmir Housing Board, with a condition that no cost overrun was permissible under any circumstances and the project was to be completed within the approved cost, and delay in completion was to result in the imposition of a penalty as per the norms. WP(C) No. 3339/2023 03. The petitioner initially approached the civil Court and filed a suit for permanent prohibitory injunction, praying for a decree to restrain the respondents from causing any sort of interference with the smooth functioning and construction of the allotted work order No. HB/1037 dated 17.07.2018. 04. The Court of learned Additional District and Sessions Judge, Handwara, vide order dated 19.01.2021, directed the parties to maintain status quo until the next date of hearing. The respondents filed their written statement opposing the suit on the ground that the petitioner had been engaged as a temporary piece worker, whose job was limited only to the extent of supplying manpower (labor only) for the construction work. 05. The contention of the respondents was that the petitioner was not a contractor, and no contract was allotted to him. It was further stated that the construction of the project was to be carried out as per the guidelines issued by the Board of Directors. The Finance Department, in accordance with the decision of the Board, had issued a service circular and as per the General Financial Rules (GFR) 2017, all types of construction work adopted by the respondents/defendants from March 2020 onwards were to be executed through e-tendering. The respondents, thus, filed an application seeking revocation of the status quo order dated 19.01.2021. 06. The trial Court, however, vide order dated 06.12.2023, dismissed the suit along with all associated applications, subject to a cost of ₹5,000/-. 07. The respondents thereafter issued NIT No. 31 of 12/2023-24 dated 08.11.2023, inviting applications for the construction of a Ramp and fixing a false ceiling at the 200-bedded District Hospital, Handwara. WP(C) No. 3339/2023 08. The petitioner has now invoked the jurisdiction of this Court, seeking to quash the e-tender (NIT No. 31 of 12/2023-24) and to set aside the impugned order dated 06.12.2023, passed by the Additional District and Sessions Judge, Handwara, in the suit titled ‘Mehraj-ud-Din Khan vs. Union Territory of Jammu & Kashmir and Others’. Further direction is sought to allow him to carry out the remaining construction work in accordance with the terms of the allotment order dated 17.07.2018, issued by the Technical Officer to respondent No. 2, and to prevent the respondents from acting upon the impugned e-tender bearing No. 31 of 12/2023-24. 09. It is submitted that the petitioner has completed almost 75% of the work when the respondents started contemplating re-tendering of remaining 25% of the work on the 200-bedded District Hospital to another party, in contravention and without considering the work executed by the petitioner. 10. The petitioner is aggrieved by the impugned e-NIT dated 08.12.2023 as well as the order dated 06.12.2023 passed by the trial Court, on the ground that they are perverse, illegal, and repugnant to the law. The respondents have arbitrarily, illegally and in undue haste notified the tender construction of ramp and for providing fixing and false ceiling of 200 Bedded District Hospital, Handwara. 11. The learned trial Court instead of deciding the application for vacation of the interim order has suo moto invoked the provisions of Order 7 Rule 11 of the Code of Civil Procedure (CPC) and dismissed the petitioner's suit, holding that the suit does not disclose any cause of action, as the same is inconsistent with the pleadings. WP(C) No. 3339/2023 12. Learned counsel for the petitioner submits that while drafting the suit an inadvertent error was made and the averment pertaining to the cause of action was recorded incorrectly, though, it was inconsistent with the pleadings but the learned trial Court should have provided them an opportunity to amend the plaint. The learned trial Court has dismissed the suit only on this ground, without considering the fact that the petitioner had completed 75% of the construction work and had invested substantial amounts in materials already delivered to the site. 13. The trial Court instead of confining itself to decide the application for interim relief under Order 39 invoked Order 7 Rule 11 CPC and dismissed the suit of the plaintiff without adequately satisfying itself with regard to the overall context and averments of the plaint. The respondents, while issuing the impugned e-tender notice, should have taken into account that the petitioner had already raised the scaffolding for affixation of the false ceiling panels and incurred substantial expenditure. The issuance of the tender has thus prejudiced his right to complete the remaining construction work. As such, the impugned e-tender suffers from non-application of mind, is flawed, and requires to be set aside. 14. The respondents have filed their objections and wherein they have opposed the submissions of the petitioner. The respondents submit that the Technical Officer to the Managing Director, J&K Housing Board, vide its letter dated 17.07.2018, authorized the petitioner for the execution of work on the District Hospital, Handwara, as a piece worker. It is submitted by the respondents that no work was allotted to the petitioner as a contractor; he was only authorized to execute the work as a piece worker, based on the WP(C) No. 3339/2023 methodology approved by the Board of Directors in its 41st meeting held on 15.02.2012 and 22.02.2012. Following the issuance of the Government Order by the Finance Department and subsequent circulars, the work could not be continued through the piece worker model, and all such works were directed to be put into the e-tendering mode. 15. The respondents also submit that the construction of the District Hospital at Handwara was approved by the Government of India under the PMDP (Prime Minister's Development Package). Since the Government of India had allotted a Government Medical College to District Kupwara, and the instant project is an associated hospital for that college, this project had to be completed for the benefit of the public. It was due to the general directions to take balance work for execution through the e-tendering process that, in all cases where the department had allotted the work without inviting tenders, the construction work was stopped at its current stage, and the process for allotment of the balance work through e-tendering was initiated. 16. The petitioner had filed a civil suit for permanent prohibitory injunction, seeking to prevent the respondents from interfering with the execution of the work. The learned trial Court, after considering the written statement and the application for vacation of the stay, dismissed the suit as not maintainable. 17. Heard learned counsel for the parties. 18. The petitioner, by way of this composite writ, has sought quashing of the impugned e-tender dated 08.12.2023, as well as the order dated 06.12.2023 passed by the trial Court, whereby the suit filed by the petitioner was dismissed under Order 7 Rule 11 CPC. The petitioner was authorized to WP(C) No. 3339/2023 execute the work for the construction of a 200-bedded hospital along with residential quarters at Handwara, Kashmir, by the Technical Officer to the Managing Director, J&K Housing Board, vide an authorization order dated 17.07.2018. Pursuant to this authorization, the petitioner commenced the execution of the work on the 200-bedded hospital along with quarters at Handwara, Kashmir. During the execution of the project, the respondents issued Government Order No. 377-F of 2019, dated 04.07.2019. This Government Order was based on an Administrative Council decision which directed that: (i) No procurement of goods and services shall be made by Public Sector Undertakings/Autonomous Bodies/Societies aided by State Government without following a transparent bidding process. (ii) No contract shall be awarded to Public Sector Undertakings/Autonomous Bodies/Societies without following a transparent bidding process. 19. This Government Order was issued to streamline the procedure for the procurement of goods and services and the award of contracts by Public Sector Undertakings, Autonomous Bodies and Societies as well as for the creation of posts and regulation of recruitment in Public Sector Undertakings, Autonomous Bodies and Societies. Thereafter, the Jammu and Kashmir Housing Board issued a circular dated 01.08.2019, directing that all ongoing works be finalized at their existing stages, and that detailed estimates of the remaining work in all such projects be prepared and processed for e-tendering at the earliest. Accordingly, the respondents initiated the tendering process for the remaining works at the existing stages. 20. It is an admitted fact that the execution of the work for the construction of the 200-bedded District Hospital at Handwara was WP(C) No. 3339/2023 authorized to be carried out by the petitioner only as a piece worker. However, all such works were directed to be executed through the process of e-tendering. Thus, the remaining work was to be carried out only after allotment through e-tendering. 21. The petitioner filed a civil suit seeking a decree of permanent prohibitory injunction along with a decree of perpetual injunction, thereby seeking to restrain the respondents from proceeding with the construction of the hospital, i.e., from carrying out the remaining work through e-tendering. However, the said suit was rejected on the ground that it did not disclose any cause of action. 22. The respondents had advertised the work for construction of a ramp and providing and fixing false ceiling for the 200-bedded District Hospital, Handwara. The respondent authorities have clearly stated that the decision to initiate the e-tendering process was based on the directions contained in Government Order No. 377-F of 2019 dated 04.07.2019, which required that balance work be undertaken through e-tendering. 23. To streamline procedures for procurement of goods and services and the award of contracts by Public Sector Undertakings and Autonomous Bodies/Societies, Government Order No. 377-F of 2019 dated 04.07.2019 was issued. In compliance with this order, execution of the remaining work was brought under the e-tendering mode. The e-tendering process, initiated through the impugned NIT, represents a transparent and appropriate method of work allotment. The petitioner cannot raise a grievance against such tendering merely on the ground that he had completed 75% of the work. The respondents are the best judges of their requirements and have rightly WP(C) No. 3339/2023 decided to put the balance work to tender. The Court should not ordinarily interfere in the matters relating to contract. 24. The Hon’ble Apex Court in ‘Jagdish Mandal vs. State of Orissa and others’, (2007) 14 SCC 517, has held as under: “19. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and malafides. Its purpose is to check whether choice or decision is made 'lawfully' and not to check whether choice or decision is 'sound'. When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court.” The prayer of the petitioner that he be allowed to complete the entire work, thus, cannot be accepted. 25. Order VII Rule 11 of the Code of Civil Procedure provides for the rejection of a plaint under the following circumstances: (a) where it does not disclose a cause of action; (b) where the relief claimed is undervalued … [rest omitted for brevity]” 26. The power of the Court under Order VII Rule 11 CPC can be exercised at any stage of the proceedings. It is the duty of the Court to examine the WP(C) No. 3339/2023 averments made in the plaint. The Court is bound to reject a plaint which does not disclose a cause of action. The rejection must be based solely on the averments made in the plaint. If, on a meaningful reading of the plaint, it is found to be manifestly meritless then the Court should exercise its power under Order VII Rule 11 CPC to reject the plaint. 27. The cause of action as pleaded in the suit was vague and unspecific. The trial Court has rightly rejected the plaint by holding that it does not disclose any cause of action. The suit otherwise also was not maintainable in view of the settled position of law. 28. In view of the foregoing facts and circumstances, there is no merit in this petition, and the same is accordingly dismissed. (Sindhu Sharma) Judge Jammu: 09.05.2025 Michal Sharma/PS Whether approved for reporting : Yes/No