# Mukesh Kumar Singh v. State of U.P. & Ors

- **Citation:** (2014) 3 ILRA 1169
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-01-14
- **Case number:** Civil Misc. Writ Petition No. 72869 of 2010
- **Bench:** Tarun Agarwala, Rajan Roy
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mukesh-kumar-singh-v-state-of-u-p-ors-43116
- **Pages:** 3

## Headnote

Constitution of India, Art.-226-Petitioner a
contractor-done certain work-evaluated by
concern engineer-bill of Rs. 15,24,164/--
admitted in reply of 80 CPC notice-in the
year
2010-raising
technical
objectionamount to defeat the claim-held entitled for
claim with -10% interest with cost of Rs.
50,000/-.

Held: Para-9 & 10

## Text

3 All]. Mukesh Kumar Singh Vs. State of U.P. & Ors.
1169
provision given under which relief can be
claimed by the aggrieved party.The power
can only be invoked to supplement the
provisions of the Code and not to override or
evade other express provisions.The position is
not different so far as the other statutes are
concerned.Undisputedly, an aggrieved person
is not remediless under the Act."

29. Further, assuming the authority
was competent to pass such order under
the provisions of the Act of 1950, in that
eventuality too, the order impugned is bad
for non-compliance of the statutory
provisions contained under sub-rule (1) of
Rule 172 of the Rules of 1952.

30. In both the ways, the order
impugned cannot be sustained in the eye
of law.The writ petition succeeds and is
allowed.The
impugned
order
dated
20.7.2009 passed by the Sub Divisional
Officer, Banda in case no. 1 of 2008-09
and order dated 14.1.2013 passed by the
Board of Revenue, U.P. at Allahabad in
revision no. 62 of 2008-09 are hereby
quashed.However,the order passed by this
Court in this writ petition will not
preclude the respondents to proceed in
accordance with law by initiating a fresh
proceeding.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.02.2014

BEFORE
THE HON'BLE TARUN AGARWALA, J.
THE HON'BLE RAJAN ROY, J.

Civil Misc. Writ Petition No. 72869 of 2010

Mukesh Kumar Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Bharat Pratap Singh

Counsel for the Respondents:
C.S.C.

Constitution of India, Art.-226-Petitioner a
contractor-done certain work-evaluated by
concern engineer-bill of Rs. 15,24,164/--
admitted in reply of 80 CPC notice-in the
year
2010-raising
technical
objectionamount to defeat the claim-held entitled for
claim with -10% interest with cost of Rs.
50,000/-.

Held: Para-9 & 10
9. In the light of the aforesaid, it is clear
that the Irrigation Department is taking a
technical ground for defeating the claim of
the petitiioner. The court finds that the
bills are admitted. The amount mentioned
in the bills are also admitted but for
reasons best known to the respondents,
the bills are not being cleared.

10. This petition is consequently allowed
and a writ of mandamus is issued directing
the
Engineer
in
Chief,
Irrigation
Department
Lucknow
to
release
the
payment within a week from today along
with interest at the rate of 10% per
annum, failing which it would be open to
the petitioner to move an appropriate
application before this Court for recovery
of the amount.

(Delivered by Hon'ble Tarun Agarwala, J.)

1. The petitioner executed certain
works under the work orders issued by the
Irrigation Department in the year 200506. It is alleged that the work orders were
executed within the stipulated period to
the satisfaction of the authority.

2. In para 5 of the writ petition it has
been contended that the bills were
prepared as per the contract which was
evaluated by the Assistant Engineer and
approved by other authorities. The bills
amounting to Rs. 15,24,164/- have not
1170 INDIAN LAW REPORTS ALLAHABAD SERIES
been paid till date inspite of every efforts
made by the petitioner. In para 8, the
petitioner contends that a legal notice
under section 80 C.P.C. was given to the
respondents, pursuant to which a reply
was given wherein the respondents have
admitted the liability to pay the said
amount subject to the allocation of
necessary budget. This reply was given in
the year 2010, inspite of which the
payments were not made. Consequently
the present writ petition was filed.

3. A counter affidavit was filed by
the Assistant Engineer on behalf of the
Irrigation
Department
admitting
the
contents of paras 5,8 and 9 of the writ
petition namely the amount as per the
bills, but the respondents contended that
the claim has now become barred by
limitation and, therefore, the said amount
cannot be paid to the petitioner.

4. Today the Engineer in Chief Sri
Awadh Naresh Gupta has filed an affidavit
taking fresh grounds while contesting the
matter on merits. The said respondent
contended that the bills were not sent as per
Clause 6 of Form No. 111 nor any registered
notice was sent to the Incharge relating to
completion of work. Further Clause 7 of the
condition of the agreement of Form 111 was
also not complied with and consequently the
bills of the petitioner could not be processed.

5. The court finds upon a perusal of the
affidavits and after hearing the learned
counsel for the State Government for the
Irrigation Department that the stands taken
by the Irrigation Department is untenable.
Para 5 of the writ petition is admitted by the
respondent in their counter affidavit, namely
that the bills were presented by the petitioner
which was processed and approved by the
respondent authorities.

6. The legal notice given by the
petitioner which has been stated in para 8
of the writ petition is also admitted by the
respondents in their reply to the said
notice in which they have categorically
admitted that the bills would be cleared as
and when budgetary allocation is made.

7. The stand of the respondent that
the claim of the petitioner has become
barred by limitation is only an afterthought to
defeat the claim of the petitioner on technical
grounds. The court is of the opinion that
since the bills of the petitioner was presented
within the period of limitation of 3 years.
The non processing of these bills and non
payment does not make these bills barred by
limitation. By not processing the bills, the
period of limitation does not come to an end
nor does it become barred by limitation.

8. The contention of the respondents
that certain clause of the agreement/form
orders were not complied by the petitioner
is again an afterthought and cannot be
considered at this belated stage. Such
grounds had not been indicated while
replying to the legal notice or while filing
the counter affidavit. At this stage new
grounds cannot be allowed to be taken in
a
supplementary
affidavit.
Such
contention
appears
to
be
patently
erroneous
especially
when
the
respondents have admitted that the bills of
the petitioner was duly processed and
approved by the respondent authorities.

9. In the light of the aforesaid, it is
clear that the Irrigation Department is taking
a technical ground for defeating the claim of
the petitiioner. The court finds that the bills
are admitted. The amount mentioned in the
bills are also admitted but for reasons best
known to the respondents, the bills are not
being
cleared.
3 All]. Vijay Shankar Yadav Vs. State of U.P. & Ors.
1171

10. This petition is consequently
allowed and a writ of mandamus is issued
directing the Engineer in Chief, Irrigation
Department Lucknow to release the payment
within a week from today along with interest
at the rate of 10% per annum, failing which it
would be open to the petitioner to move an
appropriate application before this Court for
recovery of the amount.

11. Since a clear case is made out
where the respondents are responsible, the
court hereby imposes a cost of Rs.
50,000/- which shall also be paid by the
Engineer in Chief. Rs. 25,000/- shall be
paid to the petitioner and balance Rs.
25,000/- shall be paid to the High Court
Legal Services Cell Committee.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.01.2014

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 73255 of 2011
Alongwith W.P. No. 49356 of 2011, W.P. No.
60376 of 2011, W.P. No. 11341 of 2012, W.P.
NO. 11343 of 2012W.P. No. 71329 of 2011

Vijay Shankar Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ashok Khare, Sri Siddharth Khare, Sri
Nisheeth Yadav

Counsel for the Respondents:
C.S.C.

U.P. Sub Inspectors and Inspector(Civil
Police) Service Rules 2008-Rule 15(e)-
Appendix-2-Constitution
of
Selection
Committee-contrary
to
Rule-entire
selection
vitiated
objection
regarding
participation in selection without protestbeing unsuccessful-can not challenge-not
available-behind the back of selected
candidate-cancellation
of
selectionconfined with respect of petitioner-with
consequential-direction-petition
allowed
with cost of Rs. 2000/-.

Held: Para-22 & 23
22. This submission is also thoroughly
misconceived.
Here is a case
where
respondents
have
conducted
selection
through a Selection Committee which is
patently illegal, having not been constituted
in accordance with rules. There cannot be
any estoppel against law. When something
has been done by a body, not legally
constituted, such action would be void ab
initio. In such a case, principle that once
you have participated in the selection, you
cannot challenge rules of the game will not
apply for the reason that, here, petitioners
are not challenging rules of the game, but
their grievance is that rules say something
while respondents have played the game in
complete defiance thereof and therefore,
their action is illegal and void ab initio.

23. In my view, since petitioners have
not been tested for physical efficiency
test/physical
standard
test,
by
a
Committee,
validly
constituted,
in
accordance with rules, their rejection by
an unauthorised and illegally constituted
committee is patently illegal.

Case Law discussed:
JT 2013 (11) SC 408; AIR 1936 PC 253; 2001
(4) SCC 9; 2002(1) SCC 633; 2004 (6) SCC
440; 2005(13) SCC 477; 2005(1) SCC 368;
2008(2) ESC 1220.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri Ashok Khare, Senior
Advocte, assisted by Sri Siddharth Khare,
learned counsel for the petitioners and
learned
Standing
Counsel
for
the
respondents.

2. In all these writ petitions, common
questions of law are involved and therefore,