B B VERMA Vs. STATE OF MP

JUDGEMENT

(1.) THESE are references made by the division Bench by order dated 4-5-2007 passed in W. A. Nos. 292 of 2002, 316 of 2006, 320 of 2006 and 321 of 2006, by order dated 17-5-2006 passed in W. A. No. 314 of 2006 and by order dated 19-6-2006 passed in W. A. No. 319 of 2006. By the aforesaid orders, the Division Bench has referred to the Full Bench two Division bench decisions in Ch. Chandra Shekhar v. State of M. P. and others, 2002 (1) MPLJ 358 and M/s. Seth Mohanlal Hirala1 v. State of M. P. and another, 2001 (5) MPHT 539 for reconsideration.

(2.) THE facts briefly are that the agreements of the appellants with the State Government in respect of some public works were terminated by the respondents and orders were issued for recovery of money under Clauses 4. 3. 3. 3 and 4. 3. 38. 1 from the appellants as arrear of land revenue under the M. P. Land Revenue Code, 1959. The appellants raised a dispute before the superintending Engineer (for short 's. E. ')contending that the action of the Executive engineer in terminating the agreements and issuing orders of recovery was illegal. Since the S. E. did not decide the dispute, the appellants filed applications under Section 7 of the M. P. Madhyastham Adhikaran adhiniyam, 1993 (for short 'the Adhiniyam')and the applications are pending adjudication by the Arbitration Tribunal under the adhiniyam. The appellants filed writ petitions in this Court contending inter-alia that until the Tribunal adjudicates the dispute filed by the appellants under the Adhiniyam, the recovery of the amounts as arrears of land revenue could not be made by the respondents. The learned single Judge held relying on the decision of the Division Bench in M/s. Seth Mohanlal Hiralal v. State of M. P. and another (supra) that the respondents could recover the amounts from the appellants without any adjudication by the Tribunal under clauses 4. 3. 3. 3 and 4. 3. 38. 1 of the conditions of contract and dismissed the writ petitions.

(3.) AGGRIEVED, the appellants filed the present Writ Appeals before the Division bench of this Court and after hearing learned counsel for the parties, the Division bench found that in Ch. Chandra Shekhar v. State of M. P. and others and M/s. Seth mohanlal Hiralal v. State of M. P. and another (supra), two earlier Division Benches had taken a view that the Government had the power under the conditions of contract to recover the amounts from the appellants as arrears of land revenue without seeking adjudication of its claim before the Tribunal under the Adhiniyam. The Division bench, however, found that in State of karnataka v. Rameshwar Rice Mills thirthahalli, AIR 1987 SC 1359, the supreme Court while interpreting Clause 12 of the agreement in the case enabled the state Government to recover from a private person who was a party to the agreement amount that may become due and payable by him as arrears of land revenue but the supreme Court took a view that under clause 12 of the agreement, damages for breach of conditions of contract could not be recovered. The Division Bench further found that following the decision of the supreme Court in State of Karnataka v. Rameshwar Rice Mills Thirthahalli (supra), a learned single Judge of this Court had decided in W. P. No. 640 of 1998 (M/s. Thakurdas Narang and Sons v. State of M. P. and others) on 13-4-1999 that unilateral recovery of any sum without adjudication is impermissible. The Division Bench also found that in yet another decision in M/s. F. A. Construction, Mumbai v. Narmada valley Development Department and another (2006 (2) MPHT 216), a learned single Judge placing reliance on the decision of the supreme Court in State of Karnataka v. Rameshwar Rice Mills Thirthahalli and thakurdas Narang and Sons v. State of M. P. and others (supra) had expressed the opinion that recovery of damages cannot be done without proper adjudication. Considering the aforesaid conflicting decisions on the point, the Division Bench in the orders dated 4-5-2007, 17-5-2007 and 19-6-2007 has referred to the Full Bench decisions in m/s. Seth Mohanlal Hiralal v. State of M. P. and another and Ch. Chandra Shekhar v. State of M. P. and others (supra)for reconsideration.