Jammu & Kashmir High Court – Srinagar Bench
Union Territory Of J&K vs Haji Ghulam Hassan Dar on 13 February, 2026
Author: Sindhu Sharma
Bench: Sindhu Sharma
Sr. No.
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
LPA No. 308/2019 in
CONOW No. 1349/2015
Reserved on : 14.08.2025
Pronounced on : 13.02.2026
Union Territory of J&K .... Petitioner/Appellant(s)
& ors.
Through:- Mr. M. Younis, assisting counsel
V/s
Haji Ghulam Hassan Dar .....Respondent(s)
Through:- Mr. Z. A. Qureshi, Sr. Advocate
with Ms. Rehana Fayaz, Advocate
CORAM :
HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE
HON'BLE MR. JUSTICE SHAHZAD AZEEM, JUDGE
JUDGMENT
PER: SINDHU SHARMA-J
1. This Letters Patent Appeal is directed against:
(i) the judgment dated 28.05.2019 passed in CONOW
No. 1349/2015 in RPOW No. 25/2019 c/w CPOWP
No. 91/2015, and
(ii) the judgment dated 31.10.2014 passed in OWP No.
403/2012, titled Ghulam Hassan Dar vs. State of
J&K and others.
2. The facts relevant for adjudication of the present
appeal are that pursuant to NIT dated 02.01.2009, the
respondent-contractor was allotted, vide allotment order dated
14.02.2009, the work of “Upgradation of Sehpora, Drabgam,
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Putrigam, Sountbugh viz Sheikhhard and Murran Deri Road” at
an estimated cost of Rs. 53,93,590/-. As per the terms and
conditions of the contract, two coats of WBM (Grade-II and
Grade-III) were required to be laid over a length of 9
kilometers.
3. The case of the appellants is that the contractor
failed to execute the allotted work in its entirety. While the
first coat of WBM (Grade-II) was laid over the full length of 9
kilometers, the second coat was laid only over 4.65 kilometers,
and the work of metaling (Grade-II) was executed only for 5.65
kilometers. Nearly half of the Sountbugh-Sheikhhard-
Putrigam stretch remained untouched, a fact verified at site.
Despite this, the contractor demanded payment for the entire
length of work.
4. Claiming that the balance amount of Rs. 14.426
lakhs had been illegally withheld, the respondent-contractor
filed OWP No. 403/2012, seeking release of the said amount
along with interest at the rate of 12%. The claim was founded
upon a certificate allegedly issued by the then Executive
Engineer, R&B Division, Pulwama, certifying completion of the
work.
5. The writ petition was contested by the appellants,
asserting that the contractor had not completed the work as
per the NIT and allotment order. Pursuant to an order dated
25.10.2013, a supplementary affidavit was filed by the
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Executive Engineer, categorically stating that the certificate
relied upon by the contractor was a result of fraud and bore
forged signatures. Notwithstanding the objections, the learned
Single Judge, vide judgment dated 31.10.2014, allowed the
writ petition and directed the appellants to release an amount
of Rs. 14.426 lakhs along with interest at the rate of 9% per
annum.
6. Aggrieved thereof, the appellants preferred LPAOW
No. 107/2015, which was dismissed by the Division Bench
vide order dated 07.09.2015, granting liberty to the appellants
to approach the writ court by way of a review petition.
Consequently, a review petition along with an application for
condonation of delay was filed and registered as CONOW No.
1349/2015 in RPOW No. 25/2019. The learned Single Judge,
vide order dated 28.05.2019, dismissed the review petition.
7. The principal contention of the appellants is that the
earlier LPA was not dismissed on merits but only on account
of non-production of record, and once the record was
produced in review proceedings, the learned Single Judge
ought to have reconsidered the matter. It is further contended
that the learned Writ Court as well as the Review Court failed
to appreciate the supplementary affidavit of the Executive
Engineer, who had disowned the certificate relied upon by the
contractor.
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8. Another ground urged is that the judgment under
review was in conflict with the official record, including the
Measurement Book and final bill. It is contended that the
contractor accepted the final payment in 2012 without
protest, and that physical completion does not ipso facto
establish execution of the entire quantity of work, which must
be determined strictly on the basis of the Measurement Book.
9. We have heard learned counsel for the parties and
perused the record.
10. A perusal of the order dated 28.05.2019 reveals that
the learned Single Judge correctly noted that the appellants,
under the guise of review, were attempting to reopen the
merits of the case already adjudicated.
11. The Hon’ble Supreme Court in case titled Lily
Thomas v. Union of India, (2000) 6 SCC 224, held that a
review lies only for correction of an error apparent on the face
of the record and cannot be treated as an appeal in disguise.
In para 53 the Hon’ble Supreme Court observed as under:-
“The dictionary meaning of the word “review” is “the act of
looking; offer something again with a view to correction or
improvement. It cannot be denied that the review is the
creation of a statute. This Court in Patel Narshi Thakersh
and Ors. v. Pradyunman singh ji Arjun singh ji held that
the power of review is not an inherent power. It must be
conferred by law either specifically or by necessary
implication. The review is also not an appeal in disguise. If
cannot be denied that justice is a virtue which transcends
all barriers and the rules or procedures or technicalities of
law cannot stand in the way of administration of Justice.
Law has to bend before Justice. If the Court finds that the
error pointed out in the review petition was under a
mistake and the earlier judgment would not have been
passed but for erroneous assumption which in fact did not
exist and its perpetration shall result in miscarriage of
5justice nothing would preclude the Court from rectifying
the error.”
12. Applying the aforesaid principle, the learned Single
Judge rightly concluded that no error apparent on the face of
the record was demonstrated and that the review petition was
wholly devoid of merit.
13. Coming to the judgment dated 31.10.2014, the
learned Single Judge relied upon the communication dated
12.11.2011 issued by the Deputy Commissioner, Pulwama,
which indicated that an amount of Rs. 14.426 lakhs was
payable to the respondent on account of unpaid work and that
the work stood physically completed. The communication also
recorded that an amount of Rs. 39.51 lakhs had already been
paid.
14. The explanation offered by the Executive Engineer
that the certificate was issued merely for the purpose of
indicating bidding capacity was rightly disbelieved by the
learned Writ Court. The certificate unequivocally certified that
the work was “satisfactorily completed” and bore the
signatures of both the Executive Engineer and the Assistant
Executive Engineer. The reasoning adopted by the learned
Single Judge in this regard is sound and does not call for
interference.
15. It is also significant that despite repeated
opportunities, the appellants failed to produce the relevant
record before the learned Single Judge as well as before the
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Hon’ble Division Bench. The Division Bench, in its order dated
07.09.2015, recorded:
“Even though sufficient opportunity was given to produce
the record, the same was not produced. Even in this
appeal, no record is produced to controvert the facts.”
16. In Mahant Shri Srinivas Ramanuj Das v.
Surjanarayan Das & Anr., AIR 1967 SC 256, the Hon’ble
Supreme Court held that mere withholding of documentary
evidence by a party is not enough to draw adverse inference
against him. The other party must ask the party in
possession of such evidence to produce the same, and in case
the party in possession does not produce it, adverse inference
may be drawn. The Supreme Court further held as under:-
“It is true that the defendant-respondent also did not call
upon the plaintiff-appellant to produce the documents
whose existence was admitted by one or the other witness of
the plaintiff and that therefore, strictly speaking, no
inference adverse to the plaintiff can be drawn from his non-
producing the list of documents. The Court may not be in a
position to conclude from such omission that those
documents would have directly established the case for the
respondent. But it can take into consideration in weighing
the evidence or any direct inferences from established facts
that the documents might have favoured the respondent
case.”
17. The Hon’ble Supreme Court in case titled Musauddin
Ahmed vs State Of Assam, AIR 2010 SC 3813 in para 13 held as
under:-
“It is the duty of the party to lead the best evidence in its
possession which could throw light on the issue in
controversy and in case such a material evidence is
withheld, the Court may draw adverse inference
under Section 114 illustration (g) of the Evidence
Act notwithstanding that the onus of proof did not lie on
such party and it was not called upon to produce the said
evidence.”
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18. The appellants had ample opportunity to
demonstrate that reliance on the certificate dated
12.11.2011 was misplaced and contrary to the
Measurement Books. However, their consistent failure to
produce the record disentitles them from raising such a
plea at this belated stage.
19. In view of the foregoing discussion, we find no
infirmity or illegality in either the judgment dated 31.10.2014
or the order dated 28.05.2019 warranting interference in
exercise of appellate jurisdiction.
20. Accordingly, the Letters Patent Appeal is dismissed
as being devoid of merit
(SHAHZAD AZEEM) (SINDHU SHARMA)
Judge Judge
SRINAGAR
13.02.2026
Bir*