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2018 DIGILAW 845 (ALL)

VIPIN KUMAR SHARMA v. DAKSHINANCHAL VIDYUT VITRAN NIGAM LTD. , ALIGARH

2018-04-09

A.P.SAHI, SHASHI KANT

body2018
JUDGMENT : Heard Sri Vijendra Pal Singh, learned counsel for the petitioner, Sri Neeraj Agrawal, learned counsel for the respondent nos. 1, 2 and 3 and the learned Standing Counsel for the respondent no.4. The petitioner is a contractor who had been given a contract to perform a particular job by the respondent-department. It appears that certain equipments for installation in order for the contract had been made available but were lost or stolen. The petitioner was called upon to give an explanation to the same and also to make good the loss, keeping in view, the terms of the agreement. This is evident from the office memo dated 9th July, 2012 and the memo dated 12th February, 2013, copies whereof are annexure 6 and 7 respectively. The said memos clearly indicate that in the event of default of making good the loss, the amount shall be adjusted against pending bills pertaining to the contract of the petitioner. Instead the respondents have resorted to issue a notice to the petitioner in terms of the Uttar Pradesh Government Electrical Undertaking (Dues Recovery) Rules, 1958. The said notice has been challenged before this Court contending that the recovery proceeding under the said Rules cannot be initiated, inasmuch as, such a recovery is not contemplated under the Act, under which the said Rules have been framed and for that reliance has been placed by the petitioner on Section-3 of the U.P. Government Electrical Undertaking (Dues Recovery) Act, 1958 read with Section 2(a) of the said Act. It is urged that the only nature of recovery that can be made under the said Rules is of consumption of the electrical energy and not otherwise. The special conditions of contract are at page 31 of the paper book and which does not prescribe the mode of recovery pertaining to the material to be utilized during the execution of a contract. Learned counsel for the respondent Electricity-Department has not been able to point out any such provision that may authorize the respondent to proceed with the recovery in terms of the 1958 Act and the Rules framed thereunder. We have considered the submissions raised and the fact that the recovery is not for consumption of electrical energy remains undisputed. Learned counsel for the respondent Electricity-Department has not been able to point out any such provision that may authorize the respondent to proceed with the recovery in terms of the 1958 Act and the Rules framed thereunder. We have considered the submissions raised and the fact that the recovery is not for consumption of electrical energy remains undisputed. Consequently, we are of the clear opinion that neither the 1958 Act nor the 1958 Rules can be pressed into service for the purpose of any such recovery of the nature of the loss for which the two memos have been issued when they themselves describe that it has to be made by adjusting from the pending bills of the petitioner. The dues are admittedly not relating to consumption of electrical energy. We are not delving into this issue as to how many other modes of recovery are available to the respondent, but the short issue involved herein is that the 1958 Act and the Rules do not authorize the respondent to proceed to recover the amount of the nature which is subject matter of the two memos which is the basis for the impugned recovery. The prayer made in the writ petition is to quash the recovery notice as well as the two impugned memos dated 9th July, 2012 and 12th February, 2013. So far as the impugned memos are concerned, we are not inclined to interfere with the same, the reason being the same would be governed by the terms and conditions of the agreement between the parties which form part of the special conditions of the contract as well as contained in Form-A refer to in Clause-20 of the said special conditions of the contract. This may also include arbitration. Consequently, the prayer made for quashing of the impugned memos cannot be entertained by us. So far as, the recovery under the 1958 Act and the Rules is concerned as already observed, the same cannot be a mode of recovery for the purpose of recovering the amount which is sought to be recovered from the petitioner under the impugned memo dated 9th July, 2012 and 12th February, 2013. We, therefore partly allowed the writ petition and quash the recovery notice dated 21st March, 2016, as it is patently without authority in law. We, therefore partly allowed the writ petition and quash the recovery notice dated 21st March, 2016, as it is patently without authority in law. The agreement between the parties also does not allow any such mode of recovery, consequently, the writ petition is partly allowed to the extent indicated above. No order as to costs without prejudice to the rights of the respondent-department to realize and recover the amount by any other mode that may be available.