# Aparna Construction & Supplies, Mirzapur v. State of U.P. & Ors

- **Citation:** (2014) 2 ILRA 1037
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-08-21
- **Case number:** Civil Misc. Writ Petition No.65807 of 2013
- **Bench:** Krishna Murari, Ashwani Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/aparna-construction-supplies-mirzapur-v-state-of-u-p-ors-42934
- **Pages:** 3

## Headnote

U.P. Public Money(Recovery of dues) Act
1972-Section-3(i)(d)-public
money
defined-petitioner a contractor-allowed
to complete construction work within 6
month-could not completed due to want
of money-instead of releasing amount on
demand-work
order-canceled
and
recovery of loss due to non completion of
work-as arrears of land revenue-held
contractual dues not recoverable as
arrears of land revenue-citation-without
jurisdiction.

Held: Para-11
In view of the discussions made above,
we find that issuance of recovery citation
against the petitioner for realization of
the contractual dues, alleged to be
payable by the petitioner as arrears of
land revenue, is contrary to law. The
citation issued on 8.11.2013 calling upon
the
petitioner
to
pay
the
amount,
therefore, is wholly without jurisdiction
and is liable to be quashed.

Case Law discussed:
[(2006) 3 AWC 2412]

## Text

2 All]. Aparna Construction & Supplies, Mirzapur Vs. State of U.P. & Ors.
1037
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.08.2014

BEFORE
THE HON'BLE KRISHNA MURARI, J.
THE HON'BLE ASHWANI KUMAR MISHRA, J.

Civil Misc. Writ Petition No.65807 of 2013

Aparna Construction & Supplies, Mirzapur
 ...Petitioner
Versus
State of U.P. & Ors. . ..Respondents

Counsel for the Petitioner:
Sri P.N. Tripathi, Sri Anil Bhushan

Counsel for the Respondents:
C.S.C.

U.P. Public Money(Recovery of dues) Act
1972-Section-3(i)(d)-public
money
defined-petitioner a contractor-allowed
to complete construction work within 6
month-could not completed due to want
of money-instead of releasing amount on
demand-work
order-canceled
and
recovery of loss due to non completion of
work-as arrears of land revenue-held
contractual dues not recoverable as
arrears of land revenue-citation-without
jurisdiction.

Held: Para-11
In view of the discussions made above,
we find that issuance of recovery citation
against the petitioner for realization of
the contractual dues, alleged to be
payable by the petitioner as arrears of
land revenue, is contrary to law. The
citation issued on 8.11.2013 calling upon
the
petitioner
to
pay
the
amount,
therefore, is wholly without jurisdiction
and is liable to be quashed.

Case Law discussed:
[(2006) 3 AWC 2412]

(Delivered by Hon'ble Ashwani Kumar
Mishra , J.)

1. Petitioner firm is a contractor duly
registered with the office of Divisional
Forest Officer, Forest Region, Mirzapur.
It claims that pursuant to award of
contract, a work order was issued by
respondents for construction of 30 houses
on 12.11.2010. It is asserted that the
contract
work
was
satisfactorily
completed,
whereafter
a
physical
verification was also done on 9.9.2011.
Subsequently, a team of officers also
conducted
physical
verification
and
submitted
its
report.
The
Assistant
Engineer concerned forwarded the report
stating that on 25.10.2012 the verification
team found 20 houses to be as per norms.
The
petitioner
thus
represented
on
2.2.2012
that
he
has
substantially
completed the work and the remaining
work is withheld only due to non-release
of payment against pending bills and
sought release of payment. The demand
for release of payment was also pressed
by the petitioner.

2. The petitioner claims that instead
of releasing the withheld payment, it was
served with an order dated 24.4.2013,
cancelling the contract itself on the
ground that the construction since was not
completed within a period of six months,
as was required in the contract, as such,
the contract was cancelled under Clause
44.1 of the agreement for breach of
contract. The petitioner was also informed
that losses caused were liable to be
recovered from petitioner by virtue of
Clause 45.1 of the Contract. A recovery
thereafter under Z.A. Form 68 has been
issued on 8.11.2013 for a sum of Rs.
22,02,454/-, which is under challenge in
the present writ petition.

3. We have heard Sri Anil Bhushan,
Advocate for the petitioner and learned
1038 INDIAN LAW REPORTS ALLAHABAD SERIES
Standing Counsel for the respondentsState.

4. Sri Anil Bhushan, learned counsel
for the petitioner has submitted that:-

(i) Petitioner has not been heard in
the matter before issuing the recovery
proceedings and thus the impugned action
is violative of the principle of natural
justice.

(ii) The liability of petitioner to pay
the amount claimed has not been
determined in any valid proceedings, and
as such, recovery is illegal.

(iii) The amount claimed is in
essence a contractual claim, which cannot
be recovered as arrears of land revenue.

5. Learned Standing Counsel for the
respondents, on the other hand, has
submitted that the recovery from the
petitioner is of the amount due and
payable to the respondents, and is rightly
being realized as arrears of land revenue.

6. We have examined the respective
contentions and have perused the records.
7.Petitioner has asserted in Para 12 of the
writ petition that the order for cancellation
of contract was passed mechanically and
without any opportunity of hearing to the
petitioner. The reply of the respondents
contained in Paras 8 and 9 of the counter
affidavit is wholly vague. No instance of
issuance of any notice to petitioner before
determining petitioner's liability has been
brought on record. The letters enclosed
along with the counter affidavit do not go
to show that petitioner was given any
notice or opportunity before working out
the dues, alleged to be payable by the
petitioner. Thus, contention of denial of
opportunity to petitioner is borne out from
the record.

8. Further contention of Sri Bhushan
is that the amount claimed by the
respondents, even otherwise, is at best a
contractual due, which cannot be realized
from petitioner as arrears of land revenue
particularly without any prior adjudication
of the liability. A supplementary counter
affidavit has been filed by the respondents
to
deal
with
the
argument.
The
respondents have asserted that they are
entitled to recover the amount by virtue of
Clause 45.1 of the Contract, which is
quoted hereinafter:-

"45.1. If the Contract is terminated
because of a fundamental breach of
Contract by the Contractor, the DFO,
Mirzapur shall issue a certificate for the
values of the work done and Materials
ordered less liquidated damages, if any
less advance payments received up to the
date of the issue of the certificate and less
the percentage to apply to the values of
the work not completed, as indicated in
Contract Date : If the total amount due to
the Employer exceeds any payment due to
the Contractor, the difference shall be
recovered from the security deposit. If any
amount is still left unrecovered it will be a
debt payable to the Employer."

A perusal of the clause relied upon
does not show that any amount due to the
employer can be recovered as arrears of
land revenue.

9. The citation under challenge has
been issued on 8.11.2013 by invoking the
jurisdiction conferred under Rule 282 of
the U.P.Z.A. Rules, 1950. Rule 282
provides that the proclamation of sale
shall be in Z.A. Form 74. Chapter XII of
the U.P. Zamindari Abolition and Land
Reforms Act, 1950 provides for land
revenue and the manner of its realization.
2 All]. Rajeev Sharma Vs. State of U.P. & Ors.
1039
Section 278 of U.P.Z.A. & L.R. Act
provides that a statement of account
certified by the Tehsildar shall for the
purpose of this Chapter, be conclusive
evidence of the existence of the arrears of
land revenue, of its amount and of the
person who is the defaulter. However,
other dues payable can also be recovered
as arrears of land revenue, if it is so
permitted by law. Reliance has also been
placed upon Section 3 of The U.P. Public
Moneys (Recovery of Dues) Act, 1972,
which provides for recovery of certain
dues as arrears of land revenue. Section
3(1)(d) contemplates that money payable
to
the
State
Government
or
the
Corporation, under an agreement, is
recoverable as arrears of land revenue, if
conditions
contemplated
therein
are
satisfied.

10. In the present case, the
agreement which has been relied upon by
the respondents contained no stipulation
or clause that any sum due thereunder can
be recovered as arrears of land revenue. In
the absence of there being any provision
in law or agreement for recovery of
contractual due being realizable as arrears
of land revenue, the contractual due
cannot be realized as arrears of land
revenue.
Learned
counsel
for
the
petitioner has relied upon a Division
Bench of this Court in Mohammad Umar
Vs. Collector/District Magistrate [(2006)
3 AWC 2412] wherein after noticing the
relevant provisions of the U.P.Z.A. &
L.R. Act, it has been held that contract
money for realization of Tehbazari dues
cannot be recovered as arrears of land
revenue. Various other judgments on the
point having been relied upon.

11. In view of the discussions made
above, we find that issuance of recovery
citation
against
the
petitioner
for
realization of the contractual dues, alleged
to be payable by the petitioner as arrears
of land revenue, is contrary to law. The
citation issued on 8.11.2013 calling upon
the petitioner to pay
the
amount,
therefore, is wholly without jurisdiction
and is liable to be quashed.

12. The writ petition, therefore,
succeeds and is allowed. Impugned
recovery
citation
dated
8.11.2013
(Annexure No.7 to the writ petition)
issued by respondent no.3 is quashed.
However, it would be open for the
respondents to proceed in accordance
with the terms of the contract for
determination of petitioner's liability and
its recovery, if any, in accordance with
law.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.08.2014

BEFORE
THE HON'BLE SUNEET KUMAR, J.

Civil Misc. Writ Petition No. 66930 of 2013

Rajeev Sharma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Indra Raj Singh, Sri Adarsh Singh
Sri Manoj Kumar

Counsel for the Respondents:
C.S.C., Sri Shivam Yadav

Constitution of India, Art.-226-Service
law-payment of gratuity and pension
denied on pendency of criminal appealadmittedly
disciplinary
proceeding
initiated considering role of petitioner in
criminal case-not initiated disciplinary
proceeding-held-after retirement neither