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2014 DIGILAW 132 (MP)

Infra Developers v. State of M. P.

2014-01-28

ANIL SHARMA, RAJENDRA MENON

body2014
ORDER 1. Challenging the action of the respondents in issuing a recovery order dated 15.4.2008 Annexure P/1 at the instance of the Executive Engineer, National Highway Division, petitioner has filed this writ petition. 2. Petitioner was granted a contract vide written agreement Annexure P-2 on 14.2.2006 for widening and strengthening of road from k.m. 1 to k.m.17 in National Highway No.86. Certain dispute arose in the matter of execution of contract and finally the dispute is now pending consideration before the M.P. Arbitration Tribunal in accordance to the arbitration clause available in the agreement. 3. Grievance of petitioner is that without adjudication of the dispute in accordance to the arbitration agreement and in an illegal manner the revenue recovery has been ordered. It is stated that without adjudication of the dispute by an appropriate forum in accordance to agreement the recovery ordered is unsustainable. 4. Placing reliance on the judgments rendered by the Division Bench of this Court in the case of B.B.Verma & Ors. v. State of MP & Anr. 2008 RN 52 = 2008(1) MPHT 17 , so also in W.P.No.640/1998 (Thakurdas Narang & Sons v. State of MP & ors.) decided M/s Infra Developers v. State of MP & Ors. on 13.4.1999, M/s F.A.Construction, Mumbai v. Narmada Valley Development Department & Anr. 2006 (2) MPHT 216 , it was argued by learned Sr. Counsel for the petitioner that when a dispute is raised and is pending, the liquidated damages cannot be claimed by way of issuance of the Revenue Recovery Certificate without adjudication of the dispute before the competent forum or authority. It is pointed out by Shri Rao, learned Sr. Counsel that in all these cases, principles have been well settled and in the present case also, without adjudication of the same by any proper forum, the damages cannot be claimed. 5. Respondents have filed the reply and only say that as the competent authority has rejected the claim of petitioner, the recovery is proper. However, it is an admitted position that till date the dispute has not been adjudicated and the petitioner's dispute is pending before the M.P. Arbitration Tribunal, Bhopal in case No.46/2008 wherein all dispute with regard to the contract, including the termination of contract is pending adjudication. However, it is an admitted position that till date the dispute has not been adjudicated and the petitioner's dispute is pending before the M.P. Arbitration Tribunal, Bhopal in case No.46/2008 wherein all dispute with regard to the contract, including the termination of contract is pending adjudication. It is further stated that the aforesaid amount is due to be paid to the Government and as the reference case of the petitioner has been dismissed, the petitioner cannot claim benefit merely by filing Arbitration Case before the Arbitration Tribunal. 6. Keeping in view the laws laid down in the cases of the B.B.Verma (supra) and other cases as referred to hereinabove, it is clear that without adjudication of the dispute before the proper forum or authority, the recovery of the amount by way of Revenue Recovery Certificate is not maintainable. The principle is rightly settled to the effect that once the amount is disputed, without M/s Infra Developers v. State of MP & Ors. adjudication of the same before the appropriate forum or authority, the recovery simply by way of Revenue Recovery Certificate is unsustainable. 7. Accordingly, recovery without adjudication of the claim in the light of the consistence view expressed in the cases referred to hereinabove is unsustainable. We see no reason to uphold the action taken by the State Government. Accordingly, the petition is allowed. The impugned Revenue Recovery Certificate dated 15.4.2008 Annexure-P/1 is quashed and liberty is granted to the respondents to take action afresh in accordance with law, if so advised. With the aforesaid, the petition stands allowed and disposed of.