Research › Search › Judgment

Allahabad High Court · body

2010 DIGILAW 2656 (ALL)

RAJ KUMAR v. STATE OF U. P.

2010-08-31

RAN VIJAI SINGH, V.M.SAHAI

body2010
JUDGMENT By the Court.—The petitioner happens to be son of late Jai Deo Prasad who was contractor and completed certain work under contract with the respondents. The father of the petitioner was not paid the entire amount of the contract and an amount of Rs. 5,02,713/- remain due against the respondents. Pending that payment the petitioner’s father died. After death of the father, the petitioner moved an application before the respondent No. 2 for the payment which was to be released in favour of his father. After receipt of the application of the petitioner, the Executive Engineer has required the succession certificate. The petitioner has filed a case before the Civil Judge for granting the succession certificate for which an amount of Rs. 30,588/- was paid towards Court fee. On 29.3.2007 the succession certificate was issued by the Civil Judge, (Senior Division), Mathura in favour of the petitioner. After receiving the same, the petitioner has submitted the succession certificate before the respondent No. 2 on 30.3.2007. After submission of the aforesaid certificate, the respondent No. 2 has paid Rs. 60,000/- out of Rs. 5,02,713/-. For remaining payment petitioner has filed an application on 25.5.2006 but nothing has been done. Thereafter the petitioner has sent several reminders before the respondent No. 2 but it remain unattended, copies of the few reminders have been brought on record of the writ petition. 2. Aggrieved by the inaction of the respondents the petitioner has filed present writ petition with the prayer to issue a writ of mandamus directing the respondents to make payment of an amount of Rs. 4,37,713/- alongwith 10% interest. 3. A counter-affidavit has been filed by the State respondents. In paragraph 4 of the counter-affidavit the claim of the petitioner to the extent of Rs. 5,02,713/- has been admitted by the respondents. According to that an amount of Rs. 65,788/- was paid to the petitioner vide Boucher No. 226H dated 31.3.2007 after deducting a sum of Rs. 1,474.00/- as income tax. For remaining the payment the letter has been written to the Government but the budget has not been allocated therefore the payment has not been made and as soon as the amount is received the entire payment of the petitioner shall be made to him. 4. For better appreciation the contents of paragraph 4 of the counter-affidavit is quoted below. For remaining the payment the letter has been written to the Government but the budget has not been allocated therefore the payment has not been made and as soon as the amount is received the entire payment of the petitioner shall be made to him. 4. For better appreciation the contents of paragraph 4 of the counter-affidavit is quoted below. (4) That the contents of paragraph No. 3 of the writ petition are not admitted as stated. It is submitted that the father of the petitioner completed the work for an amount of Rs. 5,02,713.00 as per records. The petitioner has been paid Rs. 65,788.00 vide Boucher No. 226H dated 31.3.2007 after deducting a sum of Rs. 1,474.00 as income tax. For the rest amount letters dated 16.11.2006, 20.2.2008 and 18.8.2009 have been sent by the answering respondent for making fund available in order to make payment to the petitioner. As soon as the amount is received the same shall be paid to the petitioner. There is no provision for making payment of interest on the aforesaid amount. True copies of letters dated 16.11.2006, 20.2.2008 and 18.8.2009 are being filed herewith and marked as Annexure Nos. CA-1, CA-2 and CA-3 respectively to this counter-affidavit. 5. In the submissions of learned counsel for the petitioner since the claim is admitted therefore a direction be issued to the respondents to pay the entire amount alongwith 10% interest. 6. Refuting the submissions of learned counsel for the petitioner learned standing counsel has submitted that the writ Court is not an appropriate remedy for redressal of such kind of grievance. The petitioner may either invoke the arbitration clause under the terms of the contract or file suit for realization of the alleged amount. 7. We have heard learned counsel for the petitioner and learned standing counsel and perused the record. 8. From the perusal of contents of paragraph 4 of the counter-affidavit, it transpires that the respondents have admitted the claim of the petitioner and the reason for non-payment as has been assigned in the counter-affidavit is non allocation of fund by the Government for payment. 9. 8. From the perusal of contents of paragraph 4 of the counter-affidavit, it transpires that the respondents have admitted the claim of the petitioner and the reason for non-payment as has been assigned in the counter-affidavit is non allocation of fund by the Government for payment. 9. After hearing learned counsel for the parties, and perusing the record we are unable to swallow the stand taken by the respondents in not releasing the payment, when the work performed by the petitioner’s father has not been disputed and liability of payment has been admitted, in such situation, it is incumbent upon the Government to release the payment. 10. From the bare perusal of contents of paragraph 4 of the counter-affidavit, it transpires that respondent No. 2 is writing letter after letter to the State Government for releasing the payment and it appears that even after respondent No. 2’s continuous effort the payment is not being released by the State Government. 11. It is noticeable that the entire work has been completed by the petitioner’s father and in completion thereof he had invested huge amount of money. It is very strange that on the one hand the Government has taken the work from the father of the petitioner who had invested his own money in performing his part of the contract and on the other hand the State Government is lacking to perform its part of contract. 12. We find that there appears to be no cogent reason for non-performance of the duty imposed upon the state Government in releasing the payment in lieu of the completion of work under the contract. For such meagre amount the State can take shelter that there is no fund. We are of the view that the authorities working under Government while entering into the agreement must be aware of their financial status for which agreement has been entered into between the parties and if the financial condition was not good then the agreement should not have been entered into and if it has been entered into there must have been clear mention in the notice that fund is not available with the Government and the contractors are required to complete the work under contract and as soon as fund is available the payment be released in absence of such mention in the notice action of the respondents cannot said to be justified. 13. 13. We are of the view that the performance of the duty of the State and its officials must be above board. Here in this case, we find that the respondents are taking a casual stand in not releasing the payment to the petitioner whose father has performed his part of contract. The petitioner has also invested about 30,000/- towards Court fees in getting the succession certificate and after submitting the succession certificate only a meagre amount of Rs. 60,000/- (Rs.65,788/- according to respondents) has been released in favour of the petitioner. The Apex Court in numerous cases has held that alternative remedy is not absolute bar and in appropriate cases the petitions can be entertained under Article 226 of the Constitution of India. The reference may be given to the Apex Court decision in Harbanslal Sahnia and another v. Indian Oil Corporation and others, 2003 SC 107 and Sanjana M Wig (Ms.) v. Hindustan Petroleum Corporation Ltd., 2005 8 SCC 242 . This Court also in the Writ Petition No. 14821 of 2008, Vijay Kumar Yadav v. State of U.P. and others, decided on 13.7.2009 Writ Petition No. 40595 of 2004, Messrs. Anup Agencies and another v. State of U.P. and others, decided on 14.12.2005 has taken the same view. 14. In view of that looking into the admitted liability of payment we feel no hesitation in allowing the writ petition with the direction to respondents to release the admitted amount to the petitioner within a period of two months from the date a certified copy of the order is produced before respondent No. 2. We further provide that as the respondents without there being any cogent reason have delayed the payment, therefore the petitioner is also entitled 8% interest. It is further provided that in case the remaining amount is not released within a period of two months, the petitioner shall be entitled 10% interest till the date of entire payment, which has to be paid by the respondents. With the aforesaid directions, the writ petition is allowed. —————