BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 26/02/2010 CORAM THE HONOUABLE MR.JUSTICE S.RAJESWARAN Writ Petition(MD)No.13743 of 2009 Writ Petition(MD)No.13744 of 2009 Writ Petition(MD)No.13745 of 2009 Writ Petition(MD)No.13746 of 2009 Writ Petition(MD)No.13747 of 2009 Writ Petition(MD)No.13748 of 2009 Writ Petition(MD)No. 14287 of 2009 Writ Petition(MD)No. 14199 of 2009 & M.P.(MD).Nos.1,1,1,1,1,1,1,1,2,2,2,2,2 and 2 of 2009 & M.P.(MD).Nos.1,1,1 and 1 of 2010 1. W.P.(MD).No.13743 of 2009 K.Bharathi . . Petitioner Vs. 1.Government of Tamil Nadu Rep. By its Secretary Rural Development and Panchayat Raj Department Tsunami District Implementation Unit, Chennai-600 001. 2.The Project Director, Project Director Office, Tsunami Project Implementation Unit, Clive Battery, Nos.4 & 4A, Rajaji Salai, Chennai-600 001. 3.The District Collector/Chairman, Tsunami District Implementation Unit, Kanyakumari District. 4.The Project Co-ordinator, Tsunami District Implementation Unit, Kanyakumari District. 5.The Executive Engineer, Rural Development, DRDA, Kanyakumari District . . Respondents
Petition filed under Article 226 of the Constitution of India praying to
issue a writ of Certiorari calling for the records pertaining to the impugned
order in D.O/683-1/2008, dated 04.12.2009 on the file of the District
Collector/Chairman, Tsunami Project Implementation Unit Kanyakumari District,
the third respondent herein and quash the same.
!For Petitioner … Mr.S.D.Ramalingam
^For Respondents… Mrs.S.Chellammal
Additional Advocate General
for Mr.K.Balasubramaniyan
Addl. Govt. Pleader
2.W.P.(MD).No.13744 of 2009
A.Muthiruvakkal . . Petitioner
Vs.
1.Government of Tamil Nadu
Rep. By its Secretary
Rural Development and Panchayat Raj Department
Tsunami District Implementation Unit,
Chennai-600 001.
2.The Project Director,
Project Director Office,
Tsunami Project Implementation Unit,
Clive Battery,
Nos.4 & 4A, Rajaji Salai,
Chennai-600 001.
3.The District Collector/Chairman,
Tsunami District Implementation Unit,
Tirunelveli District.
4.The Project Co-ordinator,
Tsunami District Implementation Unit,
Tirunelveli District.
5.The Executive Engineer,
Rural Development,
DRDA, Tirunelveli District. .. Respondents
Petition filed under Article 226 of the Constitution of India praying to issue a
writ of Certiorari calling for the records pertaining to the impugned order in
T1/259/2007, dated 27.11.2009 on the file of the District Collector/Chairman,
Tsunami Project Implementation Unit Tirunelveli District, the third respondent
herein and quash the same.
For Petitioner … Mr.S.D.Ramalingam
For Respondents… Mrs.S.Chellammal
Additional Advocate General
for Mr.K.Balasubramaniyan
Addl. Govt. Pleader
3.W.P.(MD).No.13745 of 2009
K.Bharathi .. Petitioner
Vs.
1.Government of Tamil Nadu
Rep. By its Secretary
Rural Development and Panchayat Raj Department
Tsunami District Implementation Unit,
Chennai-600 001.
2.The Project Director,
Project Director Office,
Tsunami Project Implementation Unit,
Clive Battery,
Nos.4 & 4A, Rajaji Salai,
Chennai-600 001.
3.The District Collector/Chairman,
Tsunami District Implementation Unit,
Kanyakumari District.
4.The Project Co-ordinator,
Tsunami District Implementation Unit,
Kanyakumari District.
5.The Executive Engineer,
Rural Development,
DRDA, Kanyakumari District. .. Respondents
Petition filed under Article 226 of the Constitution of India praying to
issue a writ of Certiorari calling for the records pertaining to the impugned
order in D.O/683-3/2008, dated 04.12.2009 on the file of the District
Collector/Chairman, Tsunami Project Implementation Unit Kanyakumari District,
the third respondent herein and quash the same.
For Petitioner … Mr.S.D.Ramalingam
For Respondents… Mrs.S.Chellammal
Additional Advocate General
for Mr.K.Balasubramaniyan
Addl. Govt. Pleader
4.W.P.(MD).No.13746 of 2009
K.Bharathi .. Petitioner
Vs.
1.Government of Tamil Nadu
Rep. By its Secretary
Rural Development and Panchayat Raj Department
Tsunami District Implementation Unit,
Chennai-600 001.
2.The Project Director,
Project Director Office,
Tsunami Project Implementation Unit,
Clive Battery,
Nos.4 & 4A, Rajaji Salai,
Chennai-600 001.
3.The District Collector/Chairman,
Tsunami District Implementation Unit,
Kanyakumari District.
4.The Project Co-ordinator,
Tsunami District Implementation Unit,
Kanyakumari District.
5.The Executive Engineer,
Rural Development,
DRDA, Kanyakumari District. .. Respondents
Petition filed under Article 226 of the Constitution of India praying to
issue a writ of Certiorari calling for the records pertaining to the impugned
order in D.O/683-5/2008, dated 04.12.2009 on the file of the District
Collector/Chairman, Tsunami Project Implementation Unit Kanyakumari District,
the third respondent herein and quash the same.
For Petitioner … Mr.S.D.Ramalingam
For Respondents… Mrs.S.Chellammal
Additional Advocate General
for Mr.K.Balasubramaniyan
Addl. Govt. Pleader
5.W.P.(MD).No.13747 of 2009
K.Bharathi .. Petitioner
Vs.
1.Government of Tamil Nadu
Rep. By its Secretary
Rural Development and Panchayat Raj Department
Tsunami District Implementation Unit,
Chennai-600 001.
2.The Project Director,
Project Director Office,
Tsunami Project Implementation Unit,
Clive Battery,
Nos.4 & 4A, Rajaji Salai,
Chennai-600 001.
3.The District Collector/Chairman,
Tsunami District Implementation Unit,
Kanyakumari District.
4.The Project Co-ordinator,
Tsunami District Implementation Unit,
Kanyakumari District.
5.The Executive Engineer,
Rural Development,
DRDA, Kanyakumari District. .. Respondents
Petition filed under Article 226 of the Constitution of India praying to
issue a writ of Certiorari calling for the records pertaining to the impugned
order in D.O/683-6/2008, dated 04.12.2009 on the file of the District
Collector/Chairman, Tsunami Project Implementation Unit Kanyakumari District,
the third respondent herein and quash the same.
For Petitioner … Mr.S.D.Ramalingam
For Respondents… Mrs.S.Chellammal
Additional Advocate General
for Mr.K.Balasubramaniyan
Addl. Govt. Pleader
6. W.P(MD).No.13748 of 2009
A.Muthiruvakkal .. Petitioner
Vs.
1.Government of Tamil Nadu
Rep. By its Secretary
Rural Development and Panchayat Raj Department
Tsunami District Implementation Unit,
Chennai-600 001.
2.The Project Director,
Project Director Office,
Tsunami Project Implementation Unit,
Clive Battery,
Nos.4 & 4A, Rajaji Salai,
Chennai-600 001.
3.The District Collector/Chairman,
Tsunami District Implementation Unit,
Tirunelveli District.
4.The Project Co-ordinator,
Tsunami District Implementation Unit,
Tirunelveli District.
5.The Executive Engineer,
Rural Development,
DRDA, Tirunelveli District. .. Respondents
Petition filed under Article 226 of the Constitution of India praying to
issue a writ of Certiorari calling for the records pertaining to the impugned
order in T1/264/2007, dated 27.11.2009 on the file of the District
Collector/Chairman, Tsunami Project Implementation Unit Tirunelveli District,
the third respondent herein and quash the same.
For Petitioner … Mr.S.D.Ramalingam
For Respondents… Mrs.S.Chellammal
Additional Advocate General
for Mr.K.Balasubramaniyan
Addl. Govt. Pleader
7.W.P.(MD).No.14287 of 2009
T.Thanapandian . . Petitioner
Vs.
1.Government of Tamil Nadu
Rep. By its Secretary,
Revenue Administration, Disaster Management
and Mitigation Department,
Secretariat,
Fort St. George,
Chennai-600 009.
2.The District Collector/Chairman,
Tsunami District Implementation Unit,
Tirunelveli District. . . Respondents
Petition filed under Article 226 of the Constitution of India praying to
issue a writ of Certiorari to call for the records relating to the impugned
cancellation order of the second respondent made in T1/262/2007, dated
27.11.2009 and quash the same as illegal and unsustainable.
For Petitioner… Mr.ARL.Sundereshan
Senior Counsel for
Mr.T.Senthil kumar
Respondents … Mrs.S.Chellammal
Additional Advocate General
for Mr.K.Balasubramaniyan
Addl. Govt. Pleader
8.W.P.(MD).No.14199 of 2009
T.Thanapandian . . Petitioner
Vs.
1.Government of Tamil Nadu
Rep. By its Secretary,
Revenue Administration, Disaster Management
and Mitigation Department,
Secretariat,
Fort St. George,
Chennai-600 009.
2.The District Collector/Chairman,
Tsunami District Implementation Unit,
Tirunelveli District. . . Respondents
Petition filed under Article 226 of the Constitution of India praying to
issue a writ of Certiorari to call for the records relating to the impugned
cancellation order of the second respondent made in T1/2592/2007, dated
27.11.2009 and quash the same as illegal and unsustainable.
For Petitioner… Mr.ARL.Sundereshan
Senior Counsel for
Mr.T.Senthil kumar
Respondents … Mrs.S.Chellammal
Addl. Advocate General for
Mr.K.Balasubramaniyan
Addl. Govt. Pleader
:COMMON ORDER
W.P(MD).No.13743 of 2009 is filed for a writ of Certiorari calling for the
records pertaining to the impugned order in D.O/683-1/2008, dated 04.12.2009 on
the file of the District Collector/Chairman, Tsunami Project Implementation Unit
Kanyakumari District, the third respondent herein and quash the same.
2. W.P.(MD).No.13744 of 2009 is filed for a writ of Certiorari calling for
the records pertaining to the impugned order in T1/259/2007, dated 27.11.2009 on
the file of the District Collector/Chairman, Tsunami Project Implementation Unit
Tirunelveli District, the third respondent herein and quash the same.
3. W.P.(MD).No.13745 of 2009 Petition filed under Article 226 of the
Constitution of India praying to issue a writ of Certiorari calling for the
records pertaining to the impugned order in D.O/683-3/2008, dated 04.12.2009 on
the file of the District Collector/Chairman, Tsunami Project Implementation Unit
Kanyakumari District, the third respondent herein and quash the same.
4. W.P.(MD).No.13746 of 2009 is filed for a writ of Certiorari calling for
the records pertaining to the impugned order in D.O/683-5/2008, dated 04.12.2009
on the file of the District Collector/Chairman, Tsunami Project Implementation
Unit Kanyakumari District, the third respondent herein and quash the same.
5. W.P(MD).No.13747 of 2009 is filed for Petition filed under Article 226
of the Constitution of India praying to issue a writ of Certiorari calling for
the records pertaining to the impugned order in D.O/683-6/2008, dated 04.12.2009
on the file of the District Collector/Chairman, Tsunami Project Implementation
Unit Kanyakumari District, the third respondent herein and quash the same.
6. W.P.(MD).No.13748 of 2009 is filed for a writ of Certiorari calling for
the records pertaining to the impugned order in T1/264/2007, dated 27.11.2009 on
the file of the District Collector/Chairman, Tsunami Project Implementation Unit
Tirunelveli District, the third respondent herein and quash the same.
7. W.P.(MD).No.14287 of 2009 is filed for a writ of Certiorari to call for
the records relating to the impugned cancellation order of the second respondent
made in T1/262/2007, dated 27.11.2009 and quash the same as illegal and
unsustainable.
8. W.P.(MD).No.14199 of 2009 is filed for a writ of Certiorari to call for
the records relating to the impugned cancellation order of the second respondent
made in T1/2592/2007, dated 27.11.2009 and quash the same as illegal and
unsustainable.
9 Admittedly, the issue involved and the relief sought for in all these
writ petitions are one and the same. Hence a common order is being passed.
10 The order impugned in all these writ petitions is termination of
contract.
11 For the sake of convenience, I am referring to the facts as narrated
in W.P.No.14199 of 2009.
12 The case of the petitioner in this writ petition is as follows:
The petitioner is a Civil engineering Contractor doing Government works. Tender
was invited by the Government for construction of 216 houses under Rajiv Gandhi
Rehabilitation Package for Tsunami affected areas viz., Georgia Nagar,
Thoppuvilai, Kooduthalai, Anna Nagar and Keela Ulvari habitation in kuttam and
Karaisuthu Uvari Panchayat of Tirunelveli District. Since the petitioner’s bid
was lowest the same was accepted and contract was awarded to the petitioner for
a sum of Rs.5,29,75,974/- and an agreement was also entered into between the
petitioner and the respondents on 26.12.2007. The petitioner was finally
directed to construct 189 houses. The entire construction site was handed over
to the petitioner on 26.12.2007 and some of the sites were handed over only
27.01.2008. Even though the agreement period was from 26.12.2007 to 25.09.2008
due to practical difficulties of reaching the work sites without any roads and
non availability of construction materials as promised by the respondents and
delay in handing over the sites by the respondents, the construction work could
not be started and completed as per the schedule. However, the contract period
was extended from time to time by the respondents by order dated 14.10.2008,
28.01.2009 and 01.04.2009. Major portion of the work was completed till
September 2009 and only a portion was left unfinished. Totally, 1837 houses
under 10 packages were to be constructed by various contractors like that of the
petitioner herein. But till date, none of the contractors under any package were
able to complete the project as per the schedule due to delay in handing over
the work sites by the beneficiary, non availability of construction materials
and labourers, other related problems put forth by the beneficiary and the delay
in sanctioning the bills by the officials soon. In fact, the delay on the part
of the respondents was also recorded in the minutes of the meeting held on
01.03.2008. In fact the sand was also not supplied for the construction by the
P.W.D. and the contractor had to bring sand from quarries situated 150 KM away
for Rs.8000/- and Rs.5000/- was paid for transportation alone. Even the Junior
Engineer who was posted in the site was not able to make entries with regard to
day to day progress in the measurement book. Sanctioning of the bills were also
delayed unnecessarily causing prejudice to the petitioner.
13 While so, on 03.09.2009 the petitioner was informed by the respondent
to apply for extension of time to extend the contract period. Accordingly, the
petitioner sought for extension of time till 30.12.2009 and the same was under
consideration. At that time, the petitioner received a notice from the
respondents on 25.09.2009 stating that the work progress shown was very slow and
the contractor had to increase his work force and materials to complete the
work. Time was also given to the petitioner to show substantial progress. It
was also informed to the petitioner in the notice dated 25.9.2009 that if the
works were not carried out at the desired speed, the agreement would be
terminated with the forfeiture of E.M.D. and the department would take action to
complete the balance work at the petitioner’s risk and cost. The petitioner
prayed for extension of time upto 31.12.2009 and the respondents advised the
petitioner to complete the work and further stated that extension of time sought
for would be granted.
14 On 23.11.2009 a notice from the Project Co-ordinator, Tsunami
Implementation Unit, Thirunelveli District was issued pointing out certain
defects in the construction and the same was directed to be rectified. This
would make it clear that there was deemed extension of contract upto 31.12.2009
by the respondent. While so, the impugned order has been passed on 27.11.2009
cancelling the agreement and terminating contract with forfeiture of security
deposit. According to the petitioner the cancellation order is illegal and
unsustainable in law and hence the present writ petitions have been filed for
the aforesaid relief.
15 This Court on 6.01.2010 granted an interim order of stay in M.P.No.1
of 2009.
16 The second respondent viz., the District Collector, Tirunelvei
District has filed a counter affidavit along with a petition to vacate the order
of stay granted by this court on 06.01.2010.
17 The case of the second respondent is as follows:
At the outset, it is submitted that the petitioner has not approached this court
with clean hands as he has committed criminal misconduct in executing a bank
guarantee of Rs.9,72,000/- by forging the bank documents and the signature of
the bank officials and submitted the same to the second respondent. In
Tirunelveli District, re-construction of 1831 number of houses were undertaken
in 10 packages. In response to the tender notification, the petitioner applied
and became the successful bidder for construction of 216 number of houses. As
per the agreement, the completion period is nine months commencing from
26.12.2007 to 25.09.2008. But the work progress was very slow. Therefore the
first notice vide Programme Coordinator in letter No.T3/2/2008 dated 16.04.2008
was issued to the petitioner with an instruction to improve the work and show
progress. But the petitioner has not shown any progress. Even after receipt of
two letters sent by the respondent to show substantial progress, the petitioner
did not do the needful. Even during August 2009, the progress of work was
48.26% only. The petitioner in turn represented through his letter dated
7.10.2008, 30.11.2008 and 24.03.2009, expressing his difficulties in completing
the work in time and prayed for extension of time. Accordingly, the second
respondent extended the time on three occasions, namely, 26.09,2008 to
31.12.2008, 01.01.2009 to 31.03.2009 and 01.04.2009 to 31.08.2009. In fact, the
petitioner sought for extension of time upto 30.12.2009. Therefore a final
notice was issued on 25.09.2009 to the petitioner to which the petitioner
replied that the work would be completed by December 2009. But the said request
was not acceded to by the respondents. Thus, the petitioner completed only
48.26% of work alone even after giving three extension of time upto 31.08.2009.
Therefore, the tender was rightly cancelled and there is no infirmity nor
illegality in the order passed by the respondent cancelling the work, which is
impugned in the writ petition. There is no loss to the petitioner on account of
the cancellation, since all the payments for the works executed have already
been paid. Hence they prayed for dismissal of the writ petition.
18 In other writ petitions, interim order of stay was granted on
21.12.2009 and the respondents have filed a counter together with the vacate
stay petitions also.
19. I have heard the learned Senior Counsel for the petitioners and the
learned Additional Advocate General for the respondents. I have also gone
through the documents available on record including the counter affidavits
filed.
20. In all the writ petitions, the question that arises for consideration
is whether the impugned order of termination in each of the writ petition is
sustainable or not.
21. The learned Additional Advocate General raised a preliminary
objection that the writ petitions are not maintainable under Article 226 of the
Constitution of India as the dispute is in the realm of contract and even as per
the agreement entered into between the parties the dispute is to be resolved
either by resorting to arbitration or approaching the competent civil court. In
support of her submission, the learned Additional Advocate General relied on the
following judgments.
1 Judgment reported in MANU/TN/0442/2002 (S.N.Ramasamy Raju Vs the State of
Tamilnadu, Rep. By the Secretary to Govt., Highways (Rural Development) Dept.,
Chennai and others)
2 1993 SUPP (3) SCC 635 (Food Corporation of India and others Vs Jagannath
Dutta and others)
3 (2005)6 SCC 138 (Master Marine Services (P) Ltd. Vs Metcalfe & Hodgkinson (P)
Ltd. and another)
4 A.I.R. 2006 SC 198 (Orissa Agro Industries Corporation Ltd. and others Vs
Bharati Industries and others)
5 (2007)1 SCC 477 (Rajasthan Housing Board and another Vs G.S.Investments and
another)
6 (2008)8 SCC 172 (Pimri Chinchwad Municipal Corporation and others Vs Gayatri
Construction Company and another)
22 Since the preliminary objection was raised with regard to the
maintainability of the writ petitions, let me consider the question of
maintainability first.
23 Admittedly, the writ petitioner in W.P.No.14199 of 2009 entered into a
contract with the respondents on 26.12.2007 and the contract price was
Rs.5,29,75,974/-. As per the final contract 189 houses had to be built up by
the petitioner under Rajiv Gandhi Rehabilitation Package for Tsunami affected
areas of Tirunelveli district.
24 Even according to the petitioner the work could not be progressed due
to various omissions and commissions of the respondent and therefore extension
of time was granted on various dates viz., 14.10.2008, 28.01.2009 and
01.04.2009. While so, in September 2009, the petitioner was informed by the
respondents to apply for further extension of time to extend the contract
period. The petitioner thus sought for extension of time upto 31.12.2009.
According to the petitioner by letter dated 25.09.2009, he was informed that a
further extension of 21 days was granted from the date of receipt of the letter.
Not satisfied with the time granted, he sought for time till 31.12.2009 as
applied by him. On 23.11.2009, he received a notice from the Project Co-
ordinator, Tsunami Implementation Unit, Tirunelveli District stating that some
of the wooden doors shutters are sub-standard and the same has to be rectified
within five days. When he was taking steps to attend to that work, the impugned
order of termination was passed. It is not in dispute that the parties are
governed by the terms of the agreement entered into between them and clause 6 of
the schedule ‘C’ is very relevant for the purpose of deciding the issue involved
in this case.
Schedule ‘C’:-
“6. ARBITRATION CLAUSE:
In case any dispute or difference between the parties to the contract either
during the progress or after the completion of the works or after determination,
abandonment or breach of the contract or as to any other matter or thing arising
there under except as to the matters left to the sole discretion of the
Executive Engineers under clause 18, 20,25-3, 27-1, 34, 35 and 37 of the general
condition of the contractor as to the withholding by the Executive Engineer or
the payment of any bill to which the contractor may claim to be entitled.”
26 Clause 8 of the schedule ‘C’ is also very relevant as only under this
clause the contract was terminated by the respondents.
“Schedule C:-
“8 EXECUTION OF WORK:
If at any time the Collector shall be of the opinion that the contractor is
delaying commencement of the work or violating any of the progress of work as
defined by the tabular statement rate of progress in the article of agreement,
the Collector shall so advice the contractor in writing and at the same time
demand compliance. If the contractor neglects to comply with such demand within
seven days after the receipt of such notice it shall be at any time thereafter
be lawful for the Collector to determine the contract which determination shall
carry with the forfeiture of the security deposit and the total of the amount
withheld from the final bill together with value of such works as may have been
executed and not paid for such proportion of such total sums as shall be
assessed by the Collector.”
27 Clause 3 of Schedule ‘C’ is also very relevant as arguments were
advanced by the learned Senior counsel for the petitioner by contending that
this Act could not be invoked at all as proposed in the impugned order.
“Schedule ‘C’:-
“3 REVENUE RECOVERY ACT:
Whenever any amount has to be paid by the contractor in lieu of
determination of the contract by virtue of clause 57(4) any amount that may be
due or may become due from the contractor under the presence and the contractor
is not responding to the demands for the payment of said amount, then the
Government shall be entitled to recover the said amount under the provision of
the Revenue Recovery Act.
In the event of the work being transferred to any other office, Executive
Engineer/Assistant Executive Engineer who is having jurisdiction over the work
shall be competent to exercise all the powers and privilages reserved in favour
of the Government.”
28 In view of the above clauses and also in view of the settled law that
in a contractual matter, High court should sparingly exercised its jurisdiction
under Article 226 of the Constitution of India, I have no hesitation in holding
that these writ petitions are not maintainable.
29 Further, according to the writ petitioner, it is the respondents who
are responsible for the delay and therefore time should have been extended
further instead of arbitrarily terminating the contract. This was seriously
disputed by the respondents by pointing out the accused finger at the petitioner
in view of the disputed fact like who is at fault for the delay, whether further
extension ought to have been granted and further whether the petitioner is put
to irreparable loss have to be decided only in a competent civil court by
letting in evidence. Hence all these writ petitions are liable to be dismissed
as not maintainable.
30 But the learned Senior counsel appearing for the petitioner submitted
that atleast that portion of the impugned order wherein the second respondent
stated that excess cost involved would be recovered through Revenue Recovery act
should be set aside. According to him, the respondents cannot resort to
provisions of the Revenue Recovery act for recovering the excess cost.
31 The learned Senior counsel very much relied on the following three
judgments.
1 1988 L.W. 383 (P.A.Aliyar Saheb and 288 others Vs Independent Dy. Tahsildar,
Pallipattu, Chengalpattu and others)
2 1990(II) M.L.J. 25 (The National Engineering Co. Ltd., Madras Vs The
Tahsildar, Fort Tondiarpet Taluk, Madras and others)
3 An unreported judgment dated 15.07.2009 in W.P.No.13298 of 2009 (N.V. Babu Vs
The Divisional Engineer (H), NABARD Rural Roads, Chengalput and another)
32 I am unable to accept these submissions also of the learned Senior
counsel.
33 In 1988(II) L.W. 383 (cited supra), the learned Judge of this court has
held as follows:
“43. Therefore, in my opinion, the result of the above decisions is that
in a case where the amount is recoverable only as “sum due to the State
Government” failing within the scope of S.52 of the Revenue Recovery Act and
where a person from whom the said amount is sought to be recovered disputes
either the existence of his liability or the extent of his liability, before
resort to the provisions of the Revenue Recovery Act can be had, there must be
an enquiry by the State in which the alleged defaulter is entitled to
participate and wherein the basis of the liability as well as the amount claimed
by the State must be d\made known to the alleged defaulter who is given an
opportunity to place all the materials and circumstances which, in his opinion,
go to exclude or eliminate his liability itself or to reduce the liability and a
determination based on such enquiry should be arrived at with reference to the
existence or the extent of the liability of the defaulter. That is exactly what
Rama Prasada Rao, J. Himself meant is made clear by two of his subsequent
judgments.
46. Having regard to the above decisions of Ramaprasada Rao, J., himself,
I am clearly of the opinion that the learned Judge did not intend to lay down
anything other than what I have already indicated above. I may also point out
that the determination and adjudication which I contemplate as a preliminary to
invocation of the provisions of the Revenue Recovery act cannot take the place
of an adjudication or determination in a Court of law which can be had either
by the State itself filing a suit in a Civil Court instead of having recourse to
the provisions of the Revenue Recovery Act or by the citizen himself instituting
a suit to question the action of the State under the provisions of the Revenue
Recovery Act. The determination and adjudication contemplated by me above is
more or less in the nature of preliminary ascertainment of the existence or
extent of the liability of a citizen, as a condition precedent to invocation
provisions of the Revenue Recovery Act. To hold that such a determination and
adjudication should be a substitute for an adjudication and determination by a
regularly constituted civil court will be to take away the right of an aggrieved
citizen to question the action of the State under the Act in a Civil Court.
Equally to insist that the State should venture upon such adjudication and
determination as if it were in the nature of a regular trial in a civil Court
will tend to defeat the very object of the Revenue Recovery Act and set at
naught the provisions of the said Act.
65. Consequently, all these writ petitions are allowed. In each one of
them, there will be a direction to the respondents not to proceed with the
recovery of the amounts alleged to be due from the petitioners under the
provisions of the Revenue Recovery Act, 1864, without first holding an enquiry,
after communicating to the petitioners concerned the particulars of the amount
claimed from them and how the same is arrived at and giving them an opportunity
to place all the materials in their possession to substantiate their case, if
they dispute either their liability or the extent of their liability and
considering the materials so placed and ascertaining the amount due from them on
the basis of such enquiry. There will be no order as to costs.”
34 Similarly, in 1990 (II) M.L.J. 25 (cited supra), the learned Single
Judge of this court has held that there must be a concluded contract and a
written agreement. In the absence of consensus between the department and the
party as regard to the value of shortages, the Government cannot invoke the
provisions of the Revenue Recovery Act. He further added that there must be
consensus AD IDEM between the State and the defaulter as regards nature and the
quantum of default if the State intends to set the provisions of the Revenue
Recovery Act into motion for recovery of such arrears found and payable by the
defaulters. Therefore, the learned Judge in the conclusion held that there must
be an enquiry by the State in which the alleged defaulter is entitled to
participate and wherein the basis of the liability as well as the amount claimed
by the State must be made known to the alleged defaulter.
35 From the above, it is very clear that when a person from whom amounts
are sought to be recovered disputes either existence of his liability or extent
of his liability before resorting to the provisions of the Revenue Recovery Act.
There must be an enquiry by the State in which defaulter is entitled to
participate and place all the materials. Revenue Recovery Act could not be
invoked if there is no mention about the Act in the agreement but the same could
be invoked if there is a clause in the agreement stipulating the recovery of the
excess amount through Revenue Recovery Act. But the learned Judges held that any
such invocation of the provisions of the Revenue Recovery Act could not be made
unilaterally and the amount should be determined only after an enquiry is
conducted and after giving an opportunity to the other side/defaulter.
Therefore, it cannot be said that the Revenue Recovery Act could not be invoked
at all as clause 3 of the schedule ‘C’ of the agreement enables the respondents
to invoke the Revenue Recovery Act.
36 The learned Senior counsel relying on an unreported judgment of the
learned Single Judge dated 15.7.2009 made in W.P.No.13298 of 2009 (cited supra),
submitted that a similar order could be passed in this case also.
37 I am unable to accept this submission also.
38 In the unreported judgment (cited supra), after terminating the
contract an amount was arrived at and the contractor was asked to pay the sum or
else to face Revenue Recovery proceedings. Only in that context, the learned
Judge set aside the demand and remanded the matter back to the respondents with
a direction to pass orders after providing reasonable opportunity and also to
furnish particulars as to how the amount was arrived at.
39 That stage is not at all arrived at in this case. What is stated in
the impugned order is that the balance work would be got executed by other
agency at the petitioner’s/Contractor’s risk and cost and the excess cost
involved will be recovered from the petitioner through Revenue Recovery Act as
per clause 3 of the agreement.
40 Therefore, only when the amount is arrived at, the question of
recovering the sum under the Revenue Recovery Act would arise. At this stage,
the petitioner cannot speculate that the respondents would not follow the
principles of natural justice before seeking to recover the amount under Revenue
Recovery Act. It is a trite law that the writ petition cannot be maintained on
mere apprehension and suspicion and this court also cannot pass orders in this
regard.
41 Therefore, in view of the aforesaid reasons, all the writ petitions
are dismissed. No costs. Consequently, all the connected miscellaneous
petitions are also dismissed. Miscellaneous petitions filed to vacate the order
of interim order stand allowed.
JIKR/
To
1.Government of Tamil Nadu
Rep. By its Secretary
Rural Development and Panchayat Raj Department
Tsunami District Implementation Unit,
Chennai-600 001.
2.The Project Director,
Project Director Office,
Tsunami Project Implementation Unit,
Clive Battery,
Nos.4 & 4A, Rajaji Salai,
Chennai-600 001.
3.The District Collector/Chairman,
Tsunami District Implementation Unit,
Tirunelveli District.
4.The Project Co-ordinator,
Tsunami District Implementation Unit,
Tirunelveli District.
5.The Executive Engineer,
Rural Development,
DRDA, Tirunelveli District.
6.The District Collector/Chairman,
Tsunami District Implementation Unit,
Kanyakumari District.
7.The Project Co-ordinator,
Tsunami District Implementation Unit,
Kanyakumari District.
8.The Executive Engineer,
Rural Development,
DRDA, Kanyakumari District.
9.Government of Tamil Nadu
Rep. By its Secretary,
Revenue Administration, Disaster Management
and Mitigation Department,
Secretariat,
Fort St. George,
Chennai-600 009.