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2013 DIGILAW 2180 (ALL)

ASHOK KUMAR v. STATE OF U. P.

2013-08-30

BRIJESH KUMAR SRIVASTAVA II, SHEO KUMAR SINGH

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JUDGMENT Hon’ble Brijesh Kumar Srivastava-II, J.—Heard learned counsel for the petitioner and learned Standing Counsel. 2. These are two writ petitions which are on the same facts claiming the same relief and, therefore, for convenience they are being disposed of by a common judgment. 3. The main relief claimed in the petition is for issuance of a direction to the respondents to pay the particular amount against the bills in question for the completed work by them pursuant to the work orders issued. 4. There is further prayer to return the security amount on completion of the work. 5. Before dealing with the matter we are to just notice that in recent past large number of petitions came before this Court for the same relief as has been claimed in this writ petition. 6. Normally this Court is not to interfere in a petition for payment of the amount. The Court may not be in a position to ascertain the correctness of the claimed amount and about the entitlement but in most of the cases petitioner annexed the copy of correspondences made by the concerned department to the State Government and to the higher officials for release of the fund/budget for the purpose of payment then this Court started giving relief in the given set of facts. 7. In some of the cases no such correspondence, admitting the payment of the amount to the petitioner and request to higher authorities for release of the fund is annexed but in the counter-affidavit entitlement of the petitioner is admitted then also this Court gave necessary direction. 8. Here is a case where petitioner claims the payment of admitted amount on completion of the work. Various correspondences by the concerned department to the higher officials have been annexed wherein there is request of release of the budget so as to pay the petitioner. 9. The fact in this respect can be found from the averment made in various paragraphs of the writ petition, in the counter-affidavit and the documents as has been annexed with the writ petition and in the counter-affidavit. 10. Argument advanced in all the cases is that for the payment on completion of the work, pursuant to the work order issued, petitioner is entitled to get the payment and at the same time if there is delay they are entitled to get the same with interest also. 11. 10. Argument advanced in all the cases is that for the payment on completion of the work, pursuant to the work order issued, petitioner is entitled to get the payment and at the same time if there is delay they are entitled to get the same with interest also. 11. Thus the Court can safely demarcate the line to accept/not to accept claim of the petitioner straightaway in the writ petition. 12. One set of the claim which may need attention of the Court is where there is no dispute about the entitlement and payment is to be received by the petitioner but that is delayed for want/release of the budget. 13. Other set of cases may be that the entitlement/payment to the petitioner, as claimed, may be disputed. The dispute may be in relation to work so given, work so completed, the quality of the work or otherwise then certainly that may lead to adjudication of various factual controversies/issues which may be a matter of settlement either by the process of arbitration if that is so provided or by approaching the Civil Court as the case may be. 14. Here is a case where about certain payment, as stated earlier, there is no dispute and want/release of the fund is the only ground for delay. 15. The aforesaid situation has already been decided in large number of cases. We may refer certain cases on this point for the convenience. 16. In the judgment given by this Court in Civil Misc. Writ Petition No. 14821 of 2008 Vijay Kumar Yadav v. State of U. P. and others, decided on 13.7.2009, the following observation was made : “In the counter-affidavit filed by Sri Kripa Shanker who is Assistant Engineer in Public Works Department in para No. 15, the averment made by the petitioner in paragraph No. 17 has been clearly admitted. It has been stated in the counter-affidavit that work done by the petitioner has been duly verified by a team of officers of Public Works Department but as fund assigned for the work has been diverted by the then competent officer to the different head, as the fund for the purpose is not available hence the payment is not being made to the petitioner. In paragraph Nos. 17 to 20 of the counter-affidavit these facts are further reiterated. In paragraph Nos. 17 to 20 of the counter-affidavit these facts are further reiterated. In view of the aforesaid, there is absolutely no dispute of the fact that claim of the petitioner is not justified. Completion of work to the full satisfaction of the authorities is admitted to the respondents in the counter-affidavit. District Offices wrote to the higher officials in hierarchy but due to want of fund payment is not being paid to the petitioner.” 17. In another judgment given by this Court in Writ C No. 8223 of 2008 M/s. Anand Shankar Traders v. U. P. Public Works Department and others, decided on 13.5.2010 the following observation was made : “In the counter-affidavit filed by Shri S.P. Srivastava, who is Assistant Engineer, Provincial Division, Public Works Department, Ballia in paragraph Nos. 4 to 8 the respondents have accepted the liability for payment to the petitioner for the work done. It has been stated in the counter-affidavit that the payment of the bill is already under consideration and the amount shall be paid as soon as the funds are released by the State Government. Thus there is absolutely no dispute of the fact that the claim of the petitioner is not justified. Accordingly, this Court is convinced that delay in making payment to the petitioner is not justified. It has been held by this Court that on completion of work if there is no dispute about bill/quantum of payment, payment should be ensured to the petitioner and the writ petitions were allowed from time to time.” 18. Similar view was taken in Writ Petition No. 8974 of 2005 Chain Shakti Cosmetics decided on 9.7.2009. 19. There is another judgment by this Court given in the case of Chitra Gupta Trading v. U. P.P.W.D. and others, 2010(6) ADJ 299 (DB), wherein the following observation was made : “Accordingly, this Court is convinced that delay in making payment to the petitioner is not justified. It has been held by this Court that on completion of work if there is no dispute about bill/quantum of payment should be ensured to the petitioner and the writ petitions were allowed from time to time.” 20. Thus it is clear that if the work was assigned to the petitioner and he completed the same satisfactorily and there is physical and technical verification by the competent authorities then he is entitled for payment. 21. Thus it is clear that if the work was assigned to the petitioner and he completed the same satisfactorily and there is physical and technical verification by the competent authorities then he is entitled for payment. 21. Statutory authorities cannot be permitted to detain the payment for which the petitioner is entitled on completion of the work. Claimant has already invested huge amount. Not only the payment of the due amount but if there is delay the interest is also he can be said to be entitled. Payment on acceptance of the claim by the competent authority has to be ensured by all concerned and if the concerned department writes to the higher authorities/State Government for release of the fund/budget then that has to be certainly released. 22. We have not found any situation where the work order has been given without sanction of the fund/work. It may be a situation that sometimes due to pressing need and in the public interest work order is immediately given but that has to be rectified immediately otherwise the authority who has entrusted the work and has made any claimant to suffer will have to to be held personally responsible for the mischief and the damage/loss, if any, has occurred to the claimant. 23. Some times there may be cases of small contract which the new entrant has taken by arranging the money excepting nominal profit. Some times the person may not be havingýÿ arrangement of huge finances so as to take risk of lingering the payment. Government has more responsibility to avoid a genuine/valid claimant from entering into litigation. In every case the Court is not awarding cost of litigation and, therefore, one has to think about irreparable loss, damage and harassment of the bonafide litigant. Government officials are expected to be more vigilant and duty conscious so as to give good feel to the common man. If their action is not responsible and they behave in a casual manner it can be misconduct also on their part. 24. Having found large number of cases of this kind and all having been decided in the same tune, we conclude the matter in the same way. 25. If their action is not responsible and they behave in a casual manner it can be misconduct also on their part. 24. Having found large number of cases of this kind and all having been decided in the same tune, we conclude the matter in the same way. 25. If the work has been properly assigned to the contractor or any other claimant and he has completed the same satisfactorily then after its physical and technical verification by the competent authority he is to immediately get the admitted amount. If there is delay in payment for non availability of the fund/budget as being written by the concerned authority to the sanctioning authority of the fund/budget then the claimant is entitled to get the same with a reasonable amount of interest at least @ 10% per annum. Certainly the reasonable delay may not be taken so strictly but every care has to be taken in good faith and all payment is to be ensured preferably within two months of finalisation of bills failing which payment of interest has to start. 26. Thus we allow/dispose of the writ petitions with the direction that the payment has to be ensured preferably within a period of two months from the date of receipt of certified copy of this order.