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Allahabad High Court · body

2015 DIGILAW 2055 (ALL)

RAJ NARAYAN MISHRA v. STATE OF U. P.

2015-07-23

D.Y.CHANDRACHUD, DILIP GUPTA

body2015
JUDGMENT By the Court.—The case of the petitioner is that the office of the Deputy Director, Ramganga Command Project, Mirzapur invited tenders on 24 July 2009 for the supply of 1100 cubic meters coarse sand during 2009-10 for the soil conservation unit at Kaushambi. The petitioner has averred that he submitted a tender which was accepted and an agreement was entered into on 16 September 2009 by which the petitioner was directed to supply 1179.56 cubic meters of coarse sand at an agreed rate of Rs 950 per cubic meter. The petitioner claims to have supplied the full quantity of sand in pursuance of the supply orders issued by the Project Director dated 10 December 2009, 5 April 2010 and 15 April 2010. The petitioner has sought to rely upon copies of the supply orders and store receipts to substantiate his claim for payment of the bills which, according to the petitioner, were sanctioned on 26 April 2010 and 15 May 2010. Despite this, the grievance was that no payment was made to the petitioner. 2. The petitioner made representations to the Chairman/Administrator, Ramganga Command Project, Kanpur on 24 April 2011 and 6 April 2011. Since payment was not made, a writ petition was filed seeking reimbursement of an amount of Rs 11,20,582/- towards supply of 1179.56 cubic meters coarse sand. 3. When the petition came up before a Division Bench of this Court on 27 February 2014, the Court noticed that a counter-affidavit was filed by the Technical Officer in the office of the Deputy Director, Soil Conservation and Water Resources Department in November 2013. In the counter-affidavit, it was stated that payment was not made to the petitioner due to insufficiency of funds and that a letter was addressed to the State Government on 31 March 2013 for the release of funds. On 27 February 2014, a Division Bench of this Court taking note of the counter-affidavit, directed the second and third respondents to release the amount alongwith interest at the rate of 8% per annum within a period of ten days and submit a proof of payment. A similar direction was issued on 10 March 2014. The petition thereafter appeared for further hearing, inter alia, on 27 April and 28 April 2015. In the meantime, a supplementary counter-affidavit dated 25 March 2014 was filed by the Administrator, Ramganga Command Project. 4. A similar direction was issued on 10 March 2014. The petition thereafter appeared for further hearing, inter alia, on 27 April and 28 April 2015. In the meantime, a supplementary counter-affidavit dated 25 March 2014 was filed by the Administrator, Ramganga Command Project. 4. In the supplementary counter-affidavit, it has been stated that on 11 March 2014, the Administrator, Ramganga Command Project addressed a communication to the Principal Secretary of the concerned department for compliance of the interim directions issued by the Division Bench. In response thereto, the Secretary, Government of U P addressed a communication dated 14 March 2014 to the Administrator, Ramganga Command Project. It has been stated that in the letter dated 14 March 2014 of the Secretary of the concerned department, certain facts have been set out. The counter filed by the Administrator states that these facts were not within his knowledge. Among other things, it has been stated in the counter-affidavit that (i) by an order dated 19 March 2014, the Principal Secretary of the concerned department had issued suspension orders of Daya Shanker Gupta, the then Soil Conservation Officer; (ii) the disputed work for which the claim was made by the petitioner was got conducted by the Soil Conservation Officer without allocation of budget by creating an additional liability on the department; (iii) a departmental inquiry has been initiated; and (iv) by another communication dated 19 March 2014, the Principal Secretary of the concerned department referred the matter to the Principal Secretary in the Department of Home, Government of U P, for having the entire matter investigated by the Economic Offences Wing. The deponent of the supplementary counter-affidavit has stated that since he had joined the post of Administrator on 5 March 2014, it was only upon receipt of the letter of the Secretary dated 14 March 2014 that the irregularities found to have been committed in the matter were brought to his notice. Hence, it has been submitted that the matter, prima facie, requires a thorough investigation and examination. Moreover, it has been stated in the counter-affidavit which was filed on behalf of the earlier Administrator that several relevant facts were not mentioned. Hence, it has been submitted that the matter, prima facie, requires a thorough investigation and examination. Moreover, it has been stated in the counter-affidavit which was filed on behalf of the earlier Administrator that several relevant facts were not mentioned. In the present case, it has been stated that the Ramganga Command Project was being funded jointly by the Central and State Government and though there was a direction that no additional liability would be created, the work was got done by the official concerned by creating an additional liability in collusion with the petitioner. Finally, it has been stated that there is an arbitration agreement in the contract between the parties. 5. Learned counsel for the petitioner states that all the circumstances which have been adverted to in the supplementary counter-affidavit have been placed on the record only after the interim order was passed by a Division Bench of this Court directing the payment of the amount which was due. It has been urged that the interim order was passed since in the earlier counter-affidavit filed on behalf of the Administrator, there was no denial of liability and on the contrary, it was stated that the State Government had been moved for releasing payment. 6. The issue before the Court at the present stage is whether, in the light of material which has been placed on the record through the supplementary counter-affidavit, a direction for the release of the amount, allegedly due to the petitioner under the contract, should be issued. Essentially, the claim of the petitioner relates to work which the petitioner claims to have done in pursuance of the direction of the official concerned. The defence of the State is that the work was carried out without a sanctioned budget and necessary steps have been taken now for suspension of the officer concerned and for a reference of the matter to the Economic Offences Wing for investigation. 7. We are of the view that the issue as to whether the petitioner was complicit or has bona fide carried out the work on the direction of the concerned authority is a matter which has to be duly determined. 7. We are of the view that the issue as to whether the petitioner was complicit or has bona fide carried out the work on the direction of the concerned authority is a matter which has to be duly determined. The Principal Secretary of the concerned department should, in our view, verify after due scrutiny of the entire record, whether, as a matter of fact, the work was duly carried out by the petitioner and if so, whether payment is liable to be released to the petitioner. On the other hand, if it is found that there is any element of complicity on the part of the petitioner, then appropriate steps should be taken to protect the interest of the State. In the absence of a basic determination on whether or not the petitioner has bona fide carried out the contractual work, it would not be possible for this Court to resolve the issue in a summary manner in the exercise of its writ jurisdiction under Article 226 of the Constitution. In various other matters also, it has come to the notice of the Court that work has been carried out at the behest of subordinate officials without due sanction and authorization of the competent authority and when matters come before the Court, a concession is made by subordinate officials but thereafter the Court is informed that a serious fraud is being perpetrated on the public revenue. 8. We clarify that we are not making any determination of fact on what the precise facts in the present case are. However, sufficient material has been placed before the Court to warrant a further inquiry. We request the Principal Secretary of the concerned department to conduct an objective and fair inquiry in regard to the facts of the present case and thereafter pass a reasoned order in accordance with law. If the Principal Secretary comes to a conclusion that any amount is legitimately due and payable to the petitioner, it would be open to him to issue consequential directions after due scrutiny and verification. The determination shall be made within a period of three months from the date of receipt of a certified copy of this order. We clarify that we are not issuing a mandamus for the release of any payment in view of the seriously disputed questions of fact. 9. The determination shall be made within a period of three months from the date of receipt of a certified copy of this order. We clarify that we are not issuing a mandamus for the release of any payment in view of the seriously disputed questions of fact. 9. Having due regard to the circumstances which have been brought to the notice of the Court during the pendency of these proceedings by way of the supplementary counter-affidavit and particularly since the petition is being disposed of finally, we clarify that the interim order passed by the Division Bench shall stand vacated. 10. The petition is accordingly disposed of. There shall be no order as to costs. ——————