IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.08.2009
C O R A M:
THE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYA
and
THE HONOURABLE MR.JUSTICE RAJA ELANGO
W.A.No.1799 of 2001
1.State of Tamil Nadu
rep. by its Secretary to Government,
Highways Rural Works Department,
Fort St. George, Chennai-9.
2.Superintending Engineer,
Highways & Rural Works Department,
Guindy, Madras-600 025.
3.The Divisional Engineer,
Highways & Rural Works,
Villupuram.
4.The Superintending Engineer,
Fisheries Department Circle,
Teynampet, Madras-6.
5.The District Collector,
Villupuram Ramasamy District,
Villupuram.
6.The Tahsildar,
Tindivanam. ... Appellants
vs.
D.Subramanian ... Respondent
Writ Appeal filed under Clause 15 of the Letters Patent Act against the order passed by the learned single Judge of this Court in W.P.No.10833 of 1994, dated 21.03.2001.
For Appellants : Mr.D.Sreenivasan, Addl.G.P.
For respondent : Mr.J.R.K.Bhavanandham for
M/s.P.B.Ramalingam
J U D G M E N T
RAJA ELANGO, J.
The present Writ Appeal has been preferred by the Government against the order passed by the learned Single Judge of this Court in W.P.No.10833 of 1994, whereby the initiation of recovery proceedings by the 3rd appellant in Memo No.9193/9/90/A1, dated 13.06.1994 was quashed.
2. Brief facts of the case are as follows:-
The writ petitioner (the respondent in the Writ Appeal), who is a registered contractor, was executing various works entrusted with him by appellants 2,3 and 4. While executing a work on the basis of the allotment of work by the 4th appellant, due to his non-completion of work within a stipulated period, he was asked to pay a sum of Rs.1,33,965/-, which was calculated as loss to the Fisheries Department. Even after repeated demands made by the said Department, the contractor failed to pay the said amount. Aggrieved by the same, the Fisheries Department requested the 5th and 6th appellants to invoke the provisions of Revenue Recovery Act to recover the said amount. In the above said circumstances, the 3rd appellant initiated the recovery proceedings under the above said Memo No.9193/9/90/A1, dated 13.06.1994. Whereby the 3rd appellant inform the contractor, the payment due to him will be deferred until compliance of the payment to the Fisheries Department.
3. The said Memo dated 13.06.1994 was challenged by the contractor before the learned single Judge on the main ground that he was not given proper opportunity and the entire proceedings were initiated and decided without notice.
4. The learned Single Judge accepted the contentions of the contractor and allowed the Writ Petition, thereby, he quashed the above said Memo, dated 13.06.1994
5. We have heard both sides.
6. The learned counsel for the appellants submitted that the learned single Judge failed to note that the appellants filed a counter affidavit to the writ petition preferred by the contractor, in which they have taken a definite stand that a notice under the Revenue Recovery Act was issued on 12.05.1986. The respondent/Writ Petitioner has also admitted in the writ petition that he was aware of the proceedings through a notice affixed in his residence.
7. The learned counsel for the appellants further contended that when the fact of non-issuance of notice was refuted by the appellants, the said contractor has not chosen to challenge the same by way of filing any rejoinder. Hence, the learned Single Judge should have accepted the stand taken by the appellants herein. So, the learned Single Judge erroneously allowed the writ petition filed by the said contractor.
8. We have perused the available records also. It is evident from the records that:-
(i) a notice under the Revenue Recovery Act was issued to the Contractor on 12.05.1986 to the address which is shown in the affidavit filed in support of the writ petition.
(ii) the affidavit filed by the petitioner in the writ petition disclosed that a notice was affixed in the residence of the said petitioner.
9. The learned Single Judge failed to appreciate the specific stand taken by the appellants herein and without appraising the available documents and the pleadings, decided the issue on presumption that the said contractor was not served with a notice. The entire order of the learned Single Judge based only on the non-issuance of notice to the petitioner in the writ petition.
10. We are of the opinion that the learned Single Judge failed to consider the contentions raised by the appellants herein in proper perspective and decided the issue against the appellants herein. Hence, the impugned order passed by the learned Single Judge is hereby set aside and the Writ Appeal is allowed.
11. In the result, the Writ Appeal is allowed. No costs.
rrg
To
1.Secretary to Government,
State of Tamil Nadu
Highways Rural Works Department,
Fort St. George, Chennai-9.
2.Superintending Engineer,
Highways & Rural Works Department,
Guindy, Madras-600 025.
3.The Divisional Engineer,
Highways & Rural Works,
Villupuram.
4.The Superintending Engineer,
Fisheries Department Circle,
Teynampet, Madras-6.
5.The District Collector,
Villupuram Ramasamy District,
Villupuram.
6.The Tahsildar,
Tindivanam