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2011 DIGILAW 307 (JK)

Amarjit Singh Oberoi v. State & Anr.

2011-06-03

MANSOOR AHMAD MIR

body2011
1. Petitioner has invoked the jurisdiction of this Court to command the respondents to release the amount of claim already accepted and verified by them along with interest @ 12% per annum and also award rupees one lac as compensation for the loss caused to him due to the illegal actions of respondents, on the grounds taken in the writ petition. 2. Precisely the case of petitioner is that the respondents allotted work for carriage of fire wood from compartments 64 and 65, Gulmarg Range for the year 1988-89. Completion certificate was issued by the competent authority to the effect that no damage was caused by the contractor-petitioner during the execution of work (Annexure-"B"). He prepared the bills for an amount of Rs. 1, 05, 324. 09, Rs. 1, 49, 504. 95 and Rs. 1,31, 641.23 and also deposited Rs. 20, 000/- as security amount, i.e. Rs. 10, 000/- for each work (annexure "C" & "D"). As respondents failed to make payment in terms of the final bill, he made representations. Respondent No. 4 submitted detailed communication dated 01.11.2001, whereby it is stated that the claim of petitioner could not be settled as the records were gutted in fire. On 20.06.2002 respondent No. 4 finally submitted the case of petitioner containing 29 leaves to respondent No. 3, who in turn sent it back on 03.07.2002 (annexure "F" & "G"). Petitioner again made representation to respondent No. 1, who in turn asked respondent No. 4. Respondent No. 4 again submitted the detailed report (annexure "H" & "J"), but despite that respondents have not released the amount. 3. Respondents have filed reply and have resisted the petition on the grounds taken in it. It is apt to reproduce para-1 of preliminary objections herein: "The attention of the Hon'ble Court is invited to the relief clause of the writ petition, which for the sake of brevity is reproduced as under: "(a) Mandamus commanding the respondents to release the amount of the claim already accepted and verified by respondents along with interest at applicable bank rate i.e. 12% per annum. (b) Mandamus commanding the respondents to compensate the petitioner additionally to the tune of Rs. (b) Mandamus commanding the respondents to compensate the petitioner additionally to the tune of Rs. 1.00 lac for the loss caused to the petitioner due to illegal action of respondents while with-holding the amount of claim without any justification and recover the same from the salary of the erring officials found responsible for the action. (c) Any other order or direction which the Hon'ble Court may deem fit and proper in the facts and circumstances of the case may also be passed in favour of the petitioner and against the respondents." With respect to the prayer at "a" it is submitted that the petitioner in the writ petition has no where specifically pleaded as to what is the amount of claim already accepted which he claims in the writ petition along with interest @ 12% per annum. Therefore, for being un-specific with respect to this claim the writ petition is liable to be dismissed. Besides that the writ petition is not the remedy available to the writ petitioner for the grant of relief. The writ petitioner ought to have approached the Civil Court for settlement of accounts and payment of money and deposited the plaint there along with the required court fees on the amount which he claimed. Since this is a question of fact to be determined and the same can be determined only through the medium of a suit not through the medium of writ petition. That efficacious remedy available to him is suit therefore, and at the same time he cannot deprive the State of the Court fees which is due to the State on such a claim. Therefore, the writ petition is liable to be dismissed. For the relief at para "b" it is submitted that once the writ petitioner claim damages to the tune of Rs. 1.00 lac he suppose to attach a court fees to that extent and resort to the appropriate remedy available to him and not by way of the writ petition. Therefore, the relief at prayer clause "b" is also not available to him through the medium of present writ petition. On this account the writ petition deserves to be dismissed." 4. Virtually, the writ petitioner has sought recovery of money though not specific amount. The petitioner could have invoked the jurisdiction of Civil Court in order to seek recovery of money after settlement of the accounts. On this account the writ petition deserves to be dismissed." 4. Virtually, the writ petitioner has sought recovery of money though not specific amount. The petitioner could have invoked the jurisdiction of Civil Court in order to seek recovery of money after settlement of the accounts. It seems the petitioner has given a slip to law by not paying the court fees. Had he made a claim for specific amount, he had to pay the court fees. Even otherwise after settlement of accounts if it is found that petitioner is entitled to any amount he has to pay the court fees. 5. Respondents have denied the claim of petitioner and in addition have stated that in terms of decision of the Board dated 19.09.2007 (annexure "R"), the petitioner has failed to discharge the contract obligations, thus CDR, amount stand forfeited and penalty stands imposed. It is apt to reproduce para 2 of parawise reply herein: "2. In reply to para 2 to 10 of the writ petition, it is submitted that the Corporation has already taken an action on the representations of the writ petitioner and in this behalf a meeting was held on 19.09.2007 in the officer chamber of the Managing Director J&K State Forest Corporation at Head Office Srinagar and the directions of this Hon"ble Court as also the case of the petitioner was examined in detail. The copy of the said decision taken by the Managing Director along with the team of officers employed for the purposes of examining the case of the writ petitioner including Managing Director, Director Finance, General Manager (R&B), General Manager Srinagar Circle, Regional Manager Legal, Divisional Manager PP West. The copy of the said decision is appended herewith as Annexure-R to R3. The case was examined at length and finally it was found that with respect to compartment No. 64 Gulmarg, that the contractor has failed to discharge the contractual obligations. As per agreemental terms and conditions. The contractor besides forfeiture of CDR amount and penalty is liable for recovery of loss suffered by the Corporation on account of account timber stocks equal to 10154 cfts that has lost its timber value in the Forest and deteriorated beyond any return. As per agreemental terms and conditions. The contractor besides forfeiture of CDR amount and penalty is liable for recovery of loss suffered by the Corporation on account of account timber stocks equal to 10154 cfts that has lost its timber value in the Forest and deteriorated beyond any return. In this view of the matter it is decided to recovery the loss on account of 10154 eft that has lost its timber value equal to the amount i.e. No. of efts (10154) multiplied by market value of the time. Further, the CDR amount and all work done balance payable amount is forfeited towards the Corporation as per the relevant penalty clause of the agreement, the DMTT West/ GM Srinagar Circle, shall calculate the amount recoverable after ascertaining from the sales wing of the Corporation marked value of the time and initiate recovery proceedings against the contractor. Similarly almost the same decision has been taken with respect to compartment 65 Gulmarg which is evident from the said letter annexed with this reply as Annexure R to R3." 6. In the given circumstances disputed questions of fact are involved in the writ petition. The petitioner has also not challenged the decision of Board contained in annexure "R". 7. In the given circumstances the writ petition is not maintainable and the same is, accordingly, dismissed along with all CMPs. However, dismissal of the writ petition shall not come in the way of petitioner in seeking appropriate remedy, if available under law.