ACJ expresses displeasure over functioning of Govt Deptts in handling litigation

STATE TIMES NEWS

JAMMU: Acting Chief Justice Rajesh Bindal of J&K High has expressed displeasure over functioning of Government Departments in handling litigation, while dismissing petition of M/s National India Construction Company challenging rejection of e-bid submitted by the petitioner during technical evaluation thereof. The bid was submitted in pursuance to e-NIT No. CEJ/PMGSY/503 of 2017-18 dated 10.02.2018 for construction work of road from L044 – Khourgali to Radnote, Package No. JK14-519, Regular PMGSY (Batch-1, 2017-18), Stage-I, Block Pancheri, District Udhampur.
Acting Chief Justice Rajesh Bindal observed that court is once again constrained to comment on working of offices in Jammu & Kashmir, as to how lightly the litigation is taken. The result of this casualness is causing huge loss to the public exchequer. The casualness is not limited to the department in question but there is hardly any difference in working of all the departments. Acting Chief Justice Rajesh Bindal further observed that delay is one principle, which has drawn attention of the courts time and again. Primarily it was delay on the part of the party approaching the court. Though the Limitation Act 1963 provides for limitation for approaching the court for different kinds of reliefs, however, for filing writ petition, no period of limitation is provided.
Acting Chief Justice Rajesh Bindal further observed that in instant case and what is seen in other cases filed against the Government in this court, replies/objections are not filed in some cases even for a decade. It is not limited to main petitions but even in contempt petitions, compliance report is not filed for long time. This not only results in denying fruits of litigation to the succeeding party but even lowers public trust in the judicial institution. Supreme Court had compared a litigant approaching the court after huge delay with Kumbhkarna. “I think if considered in that light, for filing of replies/objections in the cases pending in this court, the Government officials are no better. As has been mentioned in Ramayana, Demon King Rawana had to use lot of noise and different means to wake up Kumbhkarna, when his kingdom was in trouble. Here also the Government officials are to be woken up from slumber by using different means. How Kumbhkarna was woken up is well composed in Yudha Kanda Prose Sarga 60 of Valmiki’s Ramayana English translated version, which reads, ‘Then on his breast they rained their blows, And high the wild commotion rose When cymbal vied with drum and horn.
And war cries on gale upborne. Through all the air loud discord spread, And, struck with fear, the birds fell dead. But still he slept and took his rest. Then dashed they on his shaggy chest Clubs, maces, fragments of the rock. He moved not once, nor felt the shock. The giants made one effort more with shell and drum and shout and roar. Club, mallet, mace, in fury plied, Rained blows upon his breast and side. And elephants were urged to aid, and camels groaned and horses neighed. They drenched him with a hundred pails. They tore his ears with teeth and nails. They bound together many a mace and beat him on the head and face; and elephants with ponderous tread Stamped on his limbs and chest and head. The unusual weight his slumber broke: He started, shook his sides, and woke.”
The High Court further observed that it is a case in which the project for creation of infrastructure in Union Territory of Jammu & Kashmir had been put on hold, on account of interim stay granted by this Court on April 17, 2018. As usual department was sleeping over the matter and did not even take care to file objections immediately after receipt of notice. Apparently sleeping over a matter may be more suitable for the reasons best known to them but the result remains that the people of Jammu & Kashmir remain deprived of better infrastructure facilities. Even the order passed by this Court on May 15, 2019 did not wake them up.
Court further observed that despite this order the official respondents continued sleeping over the matter for more than one year and objections were not filed to the writ petition. To wake them up, they had to be scolded. Now it was a communication from the Minister of Agriculture & Farmers Welfare Rural Development and Panchayati Raj, Government of India, mentioning details of various works under PMGSY. For works to be executed under PMGSY-2 the period of completion was upto March 31, 2020. It was mentioned that number of works were still pending for execution in Jammu and Kashmir, whereas some had still not been awarded despite sanction granted long back. The details were furnished in the aforesaid communication. It was clearly mentioned therein that in case the works, which had been sanctioned before April 1, 2020 and remain un-awarded till December 31, 2020 will be dropped from the list of sanctioned works of PMGSY and no funds shall be allowed for these works out of PMGSY funds. The Union Territory of Jammu and Kashmir will have to fund these projects out of its own resources. The observations were also made regarding delay in release of the funds to the Nodal Agency of the Union Territory of Jammu and Kashmir after release thereof by the Central Government and further commensurate State share in the projects. The request was to review all the pending projects. It was after the aforesaid communication that the officers got up from slumber. It may be for the reason that fresh funds were to flow, otherwise no one is taking care of the projects for which funds have already been released and those are hanging fire. They thought of filing objections in the petition November, 2020. All of a sudden there was urgency. Even an application was filed for early hearing of the petition. The aforesaid fact establishes that apparently there has to be some monitoring authority standing on the heads of all the departments with a stick to take even routine work from them. There can be some vested interest to keep silent and delay execution of projects. One reason can be with delays arbitration clause is invoked and lot of money is siphoned off in the form of claims. The litigation there also is not contested properly, as many times the Government fails on account of delay only.
Acting Chief Justice Rajesh Bindal further said that all the Government employees are trustees of the public money and time has come that people can ask them to be accountable for not using same properly or wasting the same. The way of working and attitude of shirking responsibility will not change unless people at the helm of affairs are held accountable for their actions and inactions. If officers and staff is paid salaries from the amounts contributed by public, why the public exchequer should suffer for their inefficiency and casualness? Alertness of senior officers of the government is evident from a recent case, where the writ petition was dismissed, however, on account of conduct of official respondents, costs of Rs 2,00,000 was imposed, to be recovered from the guilty officers/officials. Despite there being nothing decided against the Government, appeal bearing LPA No. 103/2020, titled as U.T. of J&K Vs. Om Kumar and others, was filed to challenge order passed by the Single Bench, without any delay. Otherwise there are instances where appeals are filed after five years. These types of appeals have been termed to be ‘certificate cases’ by the Supreme Court. This is one way to keep the officers awake to discharge their normal duties.
Acting Chief Justice further observed that as against that, the petitioner claimed that his offer was for Rs 9,90,10,059. Though the aforesaid offer may not be relevant as petitioner was not found to be technically qualified, but the fact remains that the difference in cost estimated by the department as compared to the bids submitted by the bidders was about 15-20 per cent. The lowest bidder had offered the rate, which was 19.10 per cent less than the estimated cost. Court further said that still further another fact strangely noticed here is that any successful bidder is ready and willing to execute the project at the same rates even after five to ten years after the same was allotted. Such instances have come before the Court earlier. This fact is also evident from the case in hand. It is with reference to the earlier litigation of the petitioner himself, where he offered to execute the work at the same rates at which it was allotted to him seven years back. Relevant para from judgement in the LPA filed in the case of the petitioner is extracted below: Apparently, it can be for one reason that the rates at which the works are allotted are so high that any contractor is able to execute the same even after five to ten years of allotment thereof, even if the time provided for completion of the work may be 1-2 years. The fact cannot be disputed that there is always increase in various cost including the labour cost during all this period besides this material cost also increases.
The High Court said that aforesaid issues need deep examination and directed the Chief Secretary, Government of Jammu & Kashmir to refer some cases for test audit to the Central Road Research Institute, New Delhi for quality of the works being executed here. Estimated cost of project calculated by the department should also be gone into by the Institute. Besides this, any other related matter can also be referred by the Chief Secretary to the Institute for bringing transparency in the system and create better infrastructure.