Allahabad High Court
Om Prakash Singh vs State Of U.P. Thru Secy. And Others on 13 October, 2014
Bench: Arun Tandon, Arvind Kumar Mishra-I
HIGH COURT OF JUDICATURE AT ALLAHABAD
?A F R
Court No. - 10
Case :- WRIT - C No. - 4707 of 2013
Petitioner :- Om Prakash Singh
Respondent :- State Of U.P. Thru Secy. And Others
Counsel for Petitioner :- Arun K. Singh-I
Counsel for Respondent :- C.S.C.
Hon'ble Arun Tandon,J.
Hon'ble Arvind Kumar Mishra-I,J.
Heard learned counsel for the petitioner and learned Standing Counsel for the State-respondents.
Petitioner before this Court had admittedly entered into the contract of ferry with the Commissioner, Moradabad Mandal, Moradabad with reference to Section 33 of Northern India Ferries Act 1878 at K.M. 29-30 of Noorpur-Thakurdwara Road, Pargana Afzalgarh, Tehsil-Nagina, District-Bijnor. It was agreed between the parties that for the purposes of construction of the temporary ferry (chatta pul), the responsibility was that of the contractor. Similarly, responsibility of dismantling such temporary ferry was also of the contractor. Construction of the ferry was to be submitted by 15th October and dismantling has to be started by 15th June of the relevant year. It was agreed upon between the parties that the goods as detailed in the agreement, which are necessary for constructions of the temporary ferries (chatta pul), would be provided by the department's warehouse/store with a stipulation that within 15 days of dismantling of the chatta pul, the goods shall be returned to the store. It was specifically stipulated between the parties that the goods, which are not so returned by the contractor, would entail payment of money by the contractor at the rates specified against each of the item as per the schedule attached to the agreement. This amount in respect of the goods, which are not so returned, had to be deducted from the security money deposited by the petitioner at the first instance.
It is not in dispute that the petitioner had taken goods from the department's warehouse/store for the purposes of construction of the chatta pul. It is also not in dispute that he did not return the goods so taken from the department. It appears that neither any order was passed by the local authorities at Bijnor for recovery of the money, as per terms of the schedule attached to the agreement. Nor any order was passed in that regard.
The matter kept hanging for a decade and ultimately, when such loss of property came to the notice of the Secretary, U. P. Shashan, Lucknow, he, by means of order dated 24.2.2012, has directed that 50 % of the loss so caused to the State Government because of non-return of the goods obtained by the petitioner-contractor for the construction of chatta pul, shall be recovered from the petitioner while 50 % of the remaining amount would be recovered from the officers of the department . It is against this order of the State Government that the present writ petition has been filed.
On behalf of the petitioner Shri Arun Kumar Singh, Advocate submitted before us that in view of Section 31 of the Northern India Ferries Act 1878, the Magistrate has to assess the damage done by the offender and since, such determination of the damage has not been done by the District Magistrate, the recovery of the amount in terms of the order dated 24.2.2012 is totally uncalled for. He further submitted that the order impugned dated 24.2.2012 has been passed in violation of principles of natural justice and the petitioner had not been afforded an opportunity to explain to the State Government that this money is not payable by the contractor, inasmuch as, the chatta pul has been damaged because of the "Act of God".
We have heard learned counsel for the petitioner and examined the records of the present writ petition.
The contentions raised on behalf of the petitioner does not appeal to the Court. The petitioner had entered into an agreement with open eyes for obtaining the goods from the department's warehouse/store for the construction of the chatta pul, which as already noticed above, provides that if the goods are not returned then the State Government would be entitled to compensation for non-return of the goods at the rates specified in the schedule attached to the agreement.
It is admitted by the petitioner that he had obtained goods from the government go-down in terms of the said agreement for construction of the chatta pul. It is also admitted to the petitioner that he had not returned the goods to the warehouse/store of the department in terms of the agreement entered into between the parties.
What logically follows is that in terms of the agreement between the parties, the petitioner becomes liable for compensating the non-return of the goods to the State Government at the rates specified in the schedule attached to the agreement.
It is surprising that none of the officers at the district level had cared to pass an order in the matter of return the goods or the money payable in that regard being realized.
Loss to the State Government is admitted on record. The explanation which is now being furnished by the petitioner is that this loss may not be recovered from the petitioner as the chatta pul had been damaged because of floods.
We are of the considered opinion that the petitioner is bound by the contract entered into between the parties. The plea of "Act of God" appears to be an after thought. Although, the writ petition is silent about the exact date on which the river Ramganga had been flooded, which according to the petitioner resulted in the chatta pul being washed away, in the counter affidavit filed by the Assistant Engineer it has been stated that in the night of 5th/6th June 2009 because of excess flow of water in river Ramganga, the chatta pul was washed away.
In our opinion, the averment so made is not sufficient to establish the "Act of God" so as to wriggle out of the contractual liability. Such vague allegations cannot be the basis for permitting the petitioner to avoid the contractual obligations or to permit the loss to the Government's property.
It is nobody's case that all due precautions had been taken for ensuring that the chatta pul constructed by the petitioner was safe or that the excess water received in river Ramganga between night of 5th and 6th June 2009 was of such an extent that a well constructed and secured chatta pul could be washed away. The explanation given is only a camouflage to avoid payment of the contracted money. What has been relied upon by the petitioner is the newspaper report. Absolutely no report was ever submitted by the petitioner or any local authority to the State Government qua the chatta pul having been washed away because of excess water in river Ramganga or for the loss which has been caused to the State Government because of the river Ramganga being flooded on the fateful night between 5th and 6th June 2009.
What is further more surprising to notice is that in paragraph 15 of the counter affidavit filed by the same Assistant Engineer it had been stated that before obtaining the goods from the department's warehouse, the required security money had also not been deposited by the petitioner.
In reply to paragraph 15 of the counter affidavit, petitioner has filed rejoinder affidavit and averments referred to above has not been denied. Therefore, the collusion between the petitioner and the officers posted at the relevant time is more than writ large on record.
The State Government appears to be more than fair and just in bifurcating the total loss between the petitioner and the officers of the department, inasmuch as, both of them appear to be guilty of causing loss to the State Government.
It is then stated that the recovery against the petitioner has been affected by the State Government after a very long period and, therefore, barred by time.
We need not enter into the said issue. Writ jurisdiction is an equitable jurisdiction. The Apex Court has held that petition under Article 226 of the Constitution of India need not be maintained for wriggling out of the terms of the admitted contract. Even otherwise, exercise of equitable jurisdiction under Article 226 of the Constitution of India in the matter pertaining to loss to the public exchequer because of collusion with State machinery is not called for.
In the facts and circumstances of the case, we are also satisfied that only one view is possible in the admitted facts of the case pertaining to the contract entered into between the State Government and the petitioner. Therefore, affording of an opportunity of hearing to the petitioner would be an empty formality. The legal proposition in that regard has been explained by the Apex Court in the case of State of U. P. Vs Om Prakash Gupta reported in AIR 1970 SC 679 and in the case of A. K. Kraipak & Ors. Vs. Union of India & Ors, AIR 1970 SC 150.
For the reasons recorded above, we refuse to exercise our writ jurisdiction in the facts of the case. Writ petition is dismissed.
Order Date :- 13.10.2014
himwan
