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2006 DIGILAW 832 (PAT)

Harbanshi Lall v. State Of Bihar

2006-09-12

NAVANITI PRASAD SINGH

body2006
Judgment 1. The present application has been filed by the petitioner for issuance of a writ or direction for making allocation of funds for payment of his outstanding bills for the works done. 2. A counter affidavit has been filed by the State stating that after the writ application was filed the matter was referred to Liability Committee, which examined the matter and found that the measurement and other circulars of the Government was not followed by the Engineers concerned of the State and as such payment could not be made. Liability to make payment was thus refuted. The petitioner alleges that for failure of the Government officials, the petitioner cannot be made to suffer. The petitioner has no hand in making measurement or filling up the measurement book. It is the duty of the Government officials themselves. If Government officials do not perform their duty the petitioner cannot be made to suffer. In other words it is submitted that for default of the Government officials the petitioner cannot be made to suffer. Reliance is placed on AIR 1954 Bombay 232 wherein C.J. Chagla has held as follows: "But the most surprising contention is put forward by the Department that because their own officer failed to discharge his statutory duty, the assessee is deprived of his right which the law has given to him under sub-section (2) of S. 24. In other words, the Department wants to benefit from and wants to take advantage of its own default. It is an elementary principle of law that no personwe take it that the Income-tax Department is included in that definitioncan put forward his own default in defence to a right asserted by the other party. A person cannot say that the party claiming the right is deprived of that right because "I have committed a default and the right is lost because of that default." 3. In the present case it is not denied that an agreement was duly executed in between the petitioner and the State. It is not denied that work was done. It is not denied that at one stage work was assessed and till that payment was made of a substantial amount. It is not denied that subsequently on measurement by the Government officials further payment was sanctioned of about Rs. 1,85,000/-. It is not denied that work was done. It is not denied that at one stage work was assessed and till that payment was made of a substantial amount. It is not denied that subsequently on measurement by the Government officials further payment was sanctioned of about Rs. 1,85,000/-. Now, after the writ application is filed the Liability Committee does not find fault in the work of the petitioner. It does not state that work was not done. The Liability Committee is a wing of the State and it says that its own officer failed to follow the direction and as such the petitioner should suffer. It may be noted that petitioner has no hand in maintaining official records. It cannot persuade officer to act in any particular manner. They are not his subordinate. If Government officials failed to maintain record as required by them the citizen, who have nothing to do to maintain of those records cannot be made to suffer. I may quote below the relevant part of the judgment reported in AIR 1981 SC 1681 (Hindustan Sugar Mills vs. State of Rajasthan): "The Central Government should honour its legal obligation arising out of contract and not drive the citizen concerned to file a suit for recovery of the amount. In a democratic society governed by the rule of law, it is the duty of the State to do what is fair and just to the citizen, and the State should not seek to defeat the legitimate claim of the citizen by adopting a legalistic attitude but should do what fairness and justice demand." 4. From the manner in which Liability Committee has proceeded to examine the claim of the petitioner, it is clear that they had come with a preconceived notion to find some fault to deny the liability. Having found no fault in the work of the petitioner, they found fault in their own officials and instead of taking action against their own officials for not following directive, the action is taken against the petitioner. This court finds that these actions are grossly arbitrary and unsustainable. It defies logic and is contrary to law. The Liability Committee appears to be merely a colourable exercise of power. 5. This court finds that these actions are grossly arbitrary and unsustainable. It defies logic and is contrary to law. The Liability Committee appears to be merely a colourable exercise of power. 5. I, therefore, set aside the report of the Liability Committee and direct that the Liability Committee should reconsider the matter after hearing the petitioner or his representative and pass a fresh order within a period of one month from today on the claim of the petitioner. I shall also like to point out that as the Liability Committee has already found fault with its own officials for not following circular, this court must be informed within a fortnight as to what action it proposes to recommend against the erring officials. If no action has been initiated, action must be taken. 6. For this limited purpose this case may be listed under the heading "For Orders" on 9th October, 2006. 7. Let a copy of this order be given to J.C to G.A. I.