Research › Search › Judgment

J&K High Court · body

2009 DIGILAW 196 (JK)

Gh. Qadir Sheikh v. State

2009-04-27

MUZAFFAR HUSSAIN ATTAR

body2009
1. In view of nature of the controversy raised in these two writ petitions they have been ordered to be listed together and are accordingly taken up together for disposal. 2. OWP No. 521/01, is filed by the petitioner praying therein for issuance of writ of mandamus to command the respondents to make available information to the petitioner about enquiry which was allegedly ordered to be initiated vide order dated 14th July 2000. The petitioner has further prayed that writ of mandamus be issued to command the respondents to release the amount of carriage charges of food grains in view of the contractual relationship between the parties. Further relief has been sought that an amount of Rs. 2,60,500/- as shown outstanding against the petitioner be recovered from respondent No.3 with further direction to initiate action under rules against respondent No.3. 3. The cause for filing of this writ petition arose in view of the contract having been allotted in favour of petitioner for transportation of food grains from Chokibal to Budnambal in the year 1997-98. The petitioner claims in the writ petition that because of the circumstances in which the petitioner was ushered into he could not ensure the proper carriage of food grains for which contract was allotted to him. The petitioner claims that he paid an amount of Rs. 2,60,500/- to respondent No.3 as shortages were found in the food grains, which he transported from Chokibal to Budnambal, but the respondent No.3 has not deposited the same and accordingly the petitioner has been saddled with the responsibility of making good the shortage of food grains, which were entrusted to him for transportation from Chokibal to Budnambal. The petitioner further claims that he approached the authorities and eventually an enquiry was ordered to be conducted, but what happened to the enquiry is not known to the petitioner. 4. Respondent No.3 has filed his reply affidavit to the writ petition. In his reply affidavit respondent No.3 has stated that a contract was allotted to the petitioner for transportation of food grains from Chokibal to Budnambal in the year 1997-98, which remained valid from June, 1997 to March 1998. It has been further stated that petitioner failed to carry out the contract resulting in shortage of food grains of 332.14 quintals of rice and wheat. It has been further pleaded that notice was served on the petitioner to make good shortages. It has been further stated that petitioner failed to carry out the contract resulting in shortage of food grains of 332.14 quintals of rice and wheat. It has been further pleaded that notice was served on the petitioner to make good shortages. In response to the notice served on the petitioner, it is stated, he responded by seeking time for making good the shortages of food grains. It has been further pleaded that on 21st of August 1998 petitioner approached the respondent No.3 with request to receive the amount due to the petitioner from the department on his behalf and adjust the same as against shortages. The respondents submit that the amount of shortages on account of food grains was worked out at Rs. 2,38,515.20 and the petitioner was entitled to receive carriage charges to the tune of Rs. 1,25,725.65 only which was less than the amount having been found due from the petitioner. It is further stated that receipt placed on the writ record is a forged document and accordingly prayer is made for dismissal of writ petition. 5. During pendency of above said writ petition, another writ petition bearing OWP No. 104/2002 came to be filed praying therein that respondents be directed to release the rent amount of Rs. 2,52,000/- on account of outstanding rent due from first July 1991 to June 30th 2001 with further direction to respondents not to adjust the rental amount against alleged shortage of food grains. It was further prayed that respondents be directed to pay interest on the rent amount at the rate of 18% per annum. This writ petition is filed on the plea that the petitioner owns a building at Chokibal Kupwara which has been leased out to the respondent-department at a rental amount of Rs. 2100/- per month. It has been further pleaded that bills were submitted by the petitioner for a period starting from 1st of July 1991 to 30th June 2001 for an amount of Rs. 2,52,000/- but same has not been paid to him presumably on the ground that the amount may be adjusted against the outstanding that has been found against him in view of the shortage of food grains. 6. Respondents have filed objections in which it has been stated that on account of shortages of food grains which were to be transported by the petitioner from Chokibal to Budnambal an amount of Rs. 6. Respondents have filed objections in which it has been stated that on account of shortages of food grains which were to be transported by the petitioner from Chokibal to Budnambal an amount of Rs. 219631.20 is out standing against the petitioner and the petitioner is liable to pay total cost of the actual out standing as per terms and conditions of the agreement. Shortages along with the penalty is worked out at Rs.439262.65. It is further submitted that petitioner submitted a bill for an amount of Rs. 125725.65 and respondent No. 2 has ordered to adjust the bill amount against the outstanding balance of Rs. 213537.00, which was still recoverable from the petitioner. It has been accordingly prayed that the writ petition be dismissed. 7. Heard learned counsel for the parties. Considered the matter. Ld. counsel for the petitioner, has relied upon case titled Gorakhpur University and ors appellant v. Shitla Prasad Nagendra and ors respondents reported in AIR 2001 SC 2433, to canvass the point that the amount to which the petitioner is entitled to from the respondent cannot be adjusted against the amount found due from the petitioner to the department. The facts of the case (supra) are that the respondent therein who was Vice Chancellor of the University of Lucknow was alleged to have over stayed in the official residence for which penal rent was charged. The claim of the respondent therein was that he had been paying the rent regularly which was accepted by the University authorities. The case of the respondent therein was that his retiral benefits were withheld and were not paid to him on the plea that certain amount of rent is out standing against him. The Honble Supreme court held that right to recover possession of the quarter from the respondent and to fix liability or determine the so-called penal rent could be done by giving prior show cause notice and in that case neither show cause notice nor any opportunity was given to him before proceeding to recover the same. The Honble Supreme Court in the facts of that case further held that the University could not proceed to recover the penal rent from the respondents as it was seriously disputed or contested by the respondents in such circumstances, University cannot be allowed to recover summarily the alleged dues. The Honble Supreme Court in the facts of that case further held that the University could not proceed to recover the penal rent from the respondents as it was seriously disputed or contested by the respondents in such circumstances, University cannot be allowed to recover summarily the alleged dues. It was further observed in the said judgment that claim of the University cannot be said to be in respect of an admitted or conceded claim or sum due and it was in this factual backdrop held that the action of the University to initiate steps for recovery of disputed penal rent from the retiral benefits of the respondents therein was illegal. 8. Turning to the facts of this case it is admitted by the petitioner that because of the circumstances, which are not being disclosed in the writ petition, could not properly look after the transportation of the food grains from Chokibal to Budnambal which resulted in shortages of food grains. The petitioner, however, has raised a dispute with respondent No.3 by stating that certain amount was paid to him and receipt was obtained which contention of the petitioner has been specifically denied by respondent No.3. Respondent No.3 has further stated that the receipt placed on writ record is forged document. 9. Besides the above said factors serious disputed question of fact are involved which cannot be adjudicated upon in this writ petition. Even recovery of rent is purely a civil dispute, the petitioner is not entitled to maintain the writ petition before this court. The respondents have stated that order has been passed by respondent No.2 wherein it has been directed to adjust the carriage charges against admitted outstanding amount found due from the petitioner on account of shortage of food grains. The said order is not challenged. Even notice for making good shortages was issued. Respondents in the fact situation of this case have every right to recover the public money found due from the petitioner. The petitioner if has any grievance against respondent No.3 is at liberty to seek appropriate remedy against him. The public money cannot be allowed to squandered but effort has to be made to secure the same. The respondents in the discharge of their official duties are duty bound to ensure that public exchequer does not suffer. 10. The petitioner if has any grievance against respondent No.3 is at liberty to seek appropriate remedy against him. The public money cannot be allowed to squandered but effort has to be made to secure the same. The respondents in the discharge of their official duties are duty bound to ensure that public exchequer does not suffer. 10. For the reasons stated above, these writ petitions are held not maintainable and are accordingly dismissed.